Gulf of the Farallones National Marine Sanctuary Regulations; Monterey Bay National Marine Sanctuary Regulations; and Cordell Bank National Marine Sanctuary Regulations

Federal RegisterNov 20, 2008

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 080302355-81415-02]

RINs 0648-AT14, 0648-AT15, 0648-AT16

Gulf of the Farallones National Marine Sanctuary Regulations; Monterey Bay National Marine Sanctuary Regulations; and Cordell Bank National Marine Sanctuary Regulations

AGENCY:

National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION:

Final rule.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is issuing final revised management plans and revised regulations for the Gulf of the Farallones, Cordell Bank, and Monterey Bay national marine sanctuaries (GFNMS, CBNMS, and MBNMS respectively). This final rule updates the existing regulations for these three sanctuaries and establishes new regulatory prohibitions for them. New prohibitions contained in this final rule include restrictions on: the introduction of introduced species; discharges from cruise ships and other vessels; attracting or approaching white sharks in GFNMS; anchoring vessels in seagrass in Tomales Bay; deserting vessels; motorized personal watercraft use in the MBNMS (definition revision); and, possessing, moving, or injuring historic resources. This final rule also codifies three dredge disposal sites in the MBNMS that existed prior to the MBNMS designation in 1992 and expands the boundaries of the MBNMS to include the Davidson Seamount and surrounding area.

DATES:

Effective Date:

Pursuant to section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised designations and regulations shall take effect and become final after the close of a review period of forty-five days of continuous session of Congress beginning on November 20, 2008. Announcement of the effective date of the final regulations will be published in the

Federal Register

ADDRESSES:

Copies of the final management plans and final environmental impact statement and the record of decision are available upon request to NOAA's Office of National Marine Sanctuaries, 1305 East-West Highway, N/NMS, Silver Spring, MD 20910. Copies are also available on the Web at

http://www.sanctuaries.nos.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

John Armor, NOAA Office of National Marine Sanctuaries, 301-713-7234.

SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434

et seq.

) (NMSA), the National Marine Sanctuary Program (NMSP)

conducted a review of the management plans for the GFNMS, CBNMS, and MBNMS. The review resulted in revised management plans for the sanctuaries, revisions to existing regulations (including new regulatory prohibitions), and changes to the terms of designation for each sanctuary. On October 6, 2006, NOAA issued notices of availability of the DMPs and DEIS, and published the associated proposed rules. (GFNMS, 71 FR 59338; CBNMS, 71 FR 59039; and MBNMS, 71 FR 59050). On March 27, 2008, NOAA published a supplemental proposed rule relating to discharges from vessels 300 gross registered tons or more in the three sanctuaries (73 FR 16224). This final rule publishes the response to comments on the proposed rule and the final regulations for the GFNMS, CBNMS, and MBNMS, and announces the availability of the final revised management plans.

The National Marine Sanctuary Program was recently elevated to an “Office” level within NOAA's National Ocean Service (NOS). Therefore, the official name of the operating unit within NOAA that implements the National Marine Sanctuaries Act is now the National Ocean Service Office of National Marine Sanctuaries. However, to minimize confusion that might be created by using different operating unit names between proposed rule and final rule, we have chosen to use National Marine Sanctuary Program and its associated acronym NMSP in this document.

A. GFNMS Background

NOAA established the GFNMS in 1981 to protect and preserve a unique and fragile ecological community, including the largest seabird colony in the contiguous United States and diverse and abundant marine mammals. The GFNMS lies off the coast of California, to the west and north of San Francisco. The GFNMS is composed of 1,279 square statute miles (966 square nautical miles) of offshore waters extending out to and around the Farallon Islands and nearshore waters (up to the mean high tide line) from Bodega Head to Rocky Point in Marin. The GFNMS is characterized by the widest continental shelf on the west coast of the contiguous United States. In the Gulf of the Farallones, the shelf reaches a width of 37 statute miles (32 nmi). Shoreward of the Farallon Islands, the continental shelf is a relatively flat sandy/muddy plain, which slopes gently to the west and north from the mainland shoreline. The Farallon Islands lie along the outer edge of the continental shelf, between 15 and 22 statute miles (13 and 19 nmi) southwest of Point Reyes and approximately 30 statute miles (26 nmi) due west of San Francisco. In addition to sandy beaches, rocky cliffs, small coves, and offshore stacks, the GFNMS includes open bays (Bodega Bay, Drakes Bay) and enclosed bays or estuaries (Bolinas Lagoon, Tomales Bay, Estero Americano, and Estero de San Antonio).

B. CBNMS Background

NOAA established the CBNMS in 1989 to protect and preserve the extraordinary ecosystem, including marine birds, mammals, and other natural resources of Cordell Bank and its surrounding waters. The CBNMS protects an area of 529 square statute miles (399 square nautical miles) off the northern California coast. The main feature of the sanctuary is Cordell Bank, an offshore granite bank located on the edge of the continental shelf, about 43 nautical miles (nmi) northwest of the Golden Gate Bridge and 23 statute miles (20 nmi) west of the Point Reyes lighthouse. The CBNMS is entirely offshore and shares its southern and eastern boundary with the GFNMS. The CBNMS eastern boundary is six miles from shore and the western boundary is the 1000 fathom isobath on the edge of the continental slope. The CBNMS is located in one of the world's four major coastal upwelling systems. The combination of oceanic conditions and undersea topography provides for a highly productive environment in a discrete, well-defined area. The vertical relief and hard substrate of the Bank provide benthic habitat with near-shore characteristics in an open ocean environment 23 statute miles (20 nmi) from shore.

C. MBNMS Background

NOAA established the MBNMS in 1992 for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. The MBNMS is located offshore of California's central coast, adjacent to and south of the GFNMS. It encompasses a shoreline length of approximately 276 statute miles (240 nmi) between Marin Rocky Pt. in Marin County and Cambria in San Luis Obispo County and, with the inclusion of the Davidson Seamount,

approximately 6,094 square statute miles (4,602 square nautical miles) of ocean and coastal waters, and the submerged lands thereunder, extending an average distance of 30 statute miles (26 nmi) from shore. Supporting some of the world's most diverse marine ecosystems, it is home to numerous mammals, seabirds, fishes, invertebrates, sea turtles and plants in a remarkably productive coastal environment.

II. Revisions to Sanctuary Terms of Designation

Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that, in designating national marine sanctuaries, NOAA specify the sanctuary's “terms of designation.” The NMSA requires that each sanctuary's terms of designation include:

1. The geographic area proposed to be included within the sanctuary;

2. The characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value; and

3. The types of activities that will be subject to regulation by the Secretary of Commerce to protect those characteristics.

The NMSA further requires that terms of designation be modified only by following the same procedures for designating the sanctuary.

Following the extensive public process for reviewing the management plans for the sanctuaries, NOAA determined that revisions to all three sanctuaries' terms of designation are necessary to ensure they continue to reflect current management priorities. The sections below describe the changes NOAA is making to each sanctuary's terms of designation and provide a printed version of each (as modified) in its entirety.

A. Revisions to the GFNMS Terms of Designation

NOAA is revising the GFNMS terms of designation to:

• Clarify that submerged lands are part of the GFNMS;

• Revise the description of activities that may be regulated to include additional activities; and

• Make minor updates to ensure the text reflects the current text of the NMSA and to ensure its description of the area is current.

1. Submerged Lands

NOAA is clarifying that the submerged lands of GFNMS are legally part of the sanctuary and included in the boundary description. At the time the sanctuary was designated in 1981, Title III of the Marine Protection, Research, and Sanctuaries Act (now also known as the NMSA) characterized national marine sanctuaries as consisting of coastal and ocean waters but did not expressly mention submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, NOAA is modifying the GFNMS terms of designation and the boundary description to replace the term “seabed” with “submerged lands.” Additionally, boundary coordinates in the revised terms of designation and in the sanctuary regulations are expressed by coordinates based on the North American Datum of 1983 (NAD 83).

2. List of Regulated Activities

NOAA is also revising the GFNMS terms of designation to modify the list of activities that may be regulated. The revised terms of designation now also authorize regulation of: discharging or depositing from beyond the boundary of the sanctuary; activities regarding cultural or historical resources; taking or possessing any marine mammal, sea turtle, or bird within or above the Sanctuary except as authorized by the Marine Mammal Protection Act, Endangered Species Act, and the Migratory Bird Treaty Act; introducing or otherwise releasing from within or into the sanctuary an introduced species; attracting or approaching any animal; and operating a vessel (i.e., watercraft of any description) within the sanctuary, including but not limited to, anchoring or deserting a vessel. These revisions will enable NOAA to more effectively and efficiently address new and emerging resource management issues, and are necessary in order to ensure protection, preservation, and management of the conservation, recreational, ecological, historical, cultural, educational, archeological, scientific, and esthetic resources and qualities of the GFNMS. Finally, a technical correction is being made to Article V to delete the phrase “and in Article IV” from the statement that “fishing” includes mariculture.

The term “fishing” does not appear in Article IV.

Throughout this document, the term “mariculture” means the same as “marine aquaculture.”

3. Updates

NOAA is also modifying the GFNMS terms of designation to provide: an updated and more complete description of characteristics that give the sanctuary particular value; greater clarity on the applicability of sanctuary emergency regulations (and consistency with the National Marine Sanctuary Program regulations of general applicability, 15 CFR Part 922, Subpart E); an updated explanation of the effect of Sanctuary authority on preexisting leases, permits, licenses, and rights; and various minor revisions to conform wording of the Designation Document, where appropriate, to wording used for more recently designated sanctuaries. In Article V (Relation to Other Regulatory Programs), the “Fishing and Waterfowl Hunting” section is revised to clarify the original intent that, although the Sanctuary does not have authority to regulate fishing, fishing vessels may be regulated with respect to activities such as discharge/deposit and anchoring in accordance with Article IV. No changes are made to the “Defense Activities” section of the Designation Document.

An additional change to the terms of designation updates Article VI regarding the process to modify the terms of designation. This change deletes the requirement that modifications must be approved by the President of the United States and replaces it with a requirement that changes be approved by the Secretary of Commerce or his or her designee. This change is consistent with amendments to the NMSA enacted after the sanctuary was designated in 1981.

The revised terms of designation printed below replace the current terms of designation first printed in the

Federal Register

on January 26, 1981 (46 FR 7936).

REVISED DESIGNATION DOCUMENT FOR GULF OF THE FARALLONES NATIONAL MARINE SANCTUARY

Preamble

Under the authority of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, Public Law 92-532 (the Act), the waters and submerged lands along the Coast of California north and south of Point Reyes Headlands, between Bodega Head and Rocky Point and surrounding the Farallon Islands, are hereby designated a National Marine Sanctuary for the purposes of preserving and protecting this unique and fragile ecological community.

Article I. Effect of Designation

Within the area designated in 1981 as The Point Reyes/Farallon Islands

National Marine Sanctuary (the Sanctuary) described in Article II, the Act authorizes the promulgation of such regulations as are reasonable and necessary to protect the values of the Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that are either to be regulated on the effective date of final rulemaking or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made.

Article II. Description of the Area

The Sanctuary consists of an area of the waters and the submerged lands thereunder adjacent to the coast of California of approximately 966 square nautical miles (nmi), extending seaward to a distance of 6 nmi from the mainland from Point Reyes to Bodega Bay and 12 nmi west from the Farallon Islands and Noonday Rock, and including the intervening waters and submerged lands. The precise boundaries are defined by regulation.

Article III. Characteristics of the Area That Give It Particular Value

The Sanctuary includes a rich and diverse marine ecosystem and a wide variety of marine habitats, including habitat for over 36 species of marine mammals. Rookeries for over half of California's nesting marine bird populations and nesting areas for at least 12 of 16 known U.S. nesting marine bird species are found within the boundaries. Abundant populations of fish and shellfish are also found within the Sanctuary. The Sanctuary also has one of the largest seasonal concentrations of white sharks (

Carcharodon carcharias

) in the world.

Article IV. Scope of Regulation

Section 1. Activities Subject to Regulation

The following activities are subject to regulation, including prohibition, as may be necessary to ensure the management, protection, and preservation of the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and aesthetic resources and qualities of this area:

a. Hydrocarbon operations;

b. Discharging or depositing any substance within or from beyond the boundary of the Sanctuary;

c. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary;

d. Activities regarding cultural or historical resources;

e. Introducing or otherwise releasing from within or into the Sanctuary an introduced species;

f. Taking or possessing any marine mammal, marine reptile, or bird within or above the Sanctuary except as permitted by the Marine Mammal Protection Act, Endangered Species Act and Migratory Bird Treaty Act;

g. Attracting or approaching any animal; and

h. Operating a vessel (i.e., watercraft of any description) within the Sanctuary.

Section 2. Consistency With International Law

The regulations governing the activities listed in section 1 of this Article will apply to foreign flag vessels and persons not citizens of the United States only to the extent consistent with recognized principles of international law, including treaties and international agreements to which the United States is signatory.

Section 3. Emergency Regulations

Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1 of this Article, are subject to immediate temporary regulation, including prohibition.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing and Waterfowl Hunting

The regulation of fishing, including fishing for shellfish and invertebrates, and waterfowl hunting, is not authorized under Article IV. However, fishing vessels may be regulated with respect to vessel operations in accordance with Article IV, section 1, paragraphs (b) and (h), and mariculture activities involving alterations of or construction on the seabed, or release of introduced species by mariculture activities not covered by a valid lease from the State of California and in effect on the effective date of the final regulation, can be regulated in accordance with Article IV, section 1, paragraph (c) and (e). All regulatory programs pertaining to fishing, and to waterfowl hunting, including regulations promulgated under the California Fish and Game Code and Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801

et seq.

, will remain in effect, and all permits, licenses, and other authorizations issued pursuant thereto will be valid within the Sanctuary unless authorizing any activity prohibited by any regulation implementing Article IV.

The term “fishing” as used in this Article includes mariculture.

Section 2. Defense Activities

The regulation of activities listed in Article IV shall not prohibit any Department of Defense activity that is essential for national defense or because of emergency. Such activities shall be consistent with the regulations to the maximum extent practicable.

Section 3. Other Programs

All applicable regulatory programs will remain in effect, and all permits, licenses, and other authorizations issued pursuant thereto will be valid within the Sanctuary unless prohibited by regulations implementing Article IV. The Sanctuary regulations will set forth any necessary certification procedures.

Article VI. Alterations to This Designation

The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee.

[END OF DESIGNATION DOCUMENT]

B. Revisions to the CBNMS Terms of Designation

NOAA is revising the CBNMS terms of designation to:

• Clarify that submerged lands are a part of the CBNMS;

• Revise the description of activities that may be regulated to include additional activities;

• Make minor updates to ensure the text reflects the current text of the NMSA and to ensure its description of the area is current.

1. Submerged Lands

NOAA is clarifying that the submerged lands of the CBNMS are legally part of the sanctuary and are included in the boundary description.

At the time the sanctuary was designated in 1989, Title III of the Marine Protection, Research, and Sanctuaries Act (now also known as the National Marine Sanctuaries Act) characterized national marine sanctuaries as consisting of coastal, marine and ocean waters but did not expressly mention submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, to be consistent with the NMSA, NOAA is updating the terms of designation and the boundary description, by adding “submerged lands thereunder” to the term “marine waters.” Additionally, boundary coordinates in the revised Designation Document and in the sanctuary regulations will be expressed by coordinates based on the North American Datum of 1983 (NAD 83).

2. List of Regulated Activities

NOAA is revising the CBNMS terms of designation to modify the list of activities that may be regulated. The revised terms of designation now also authorize regulation of: activities regarding cultural or historic resources; placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; taking or possessing any marine mammal, sea turtle, or bird; introducing or otherwise releasing an introduced species from within or into the Sanctuary; and drilling into, dredging, altering, or constructing on the submerged lands.

3. Updates

NOAA is also modifying the CBNMS terms of designation to provide: an updated and more complete description of characteristics that give the Sanctuary particular value; an updated explanation of the effect of Sanctuary authority on preexisting leases, permits, licenses, and rights; and various minor revisions in order to conform wording of the Designation Document, where appropriate, to wording used for more recently designated sanctuaries.

In Article V (Relation to Other Regulatory Programs), the “Fishing” section is revised to clarify the original intent that, although the Sanctuary does not have authority to regulate fishing, fishing vessels may be regulated with respect to discharge/deposit and anchoring in accordance with Article IV. No changes are being made to the “Defense Activities” section of the Designation Document.

Revised Designation Document for the Cordell Bank National Marine Sanctuary

Preamble

Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431

et seq.

(the “Act”), the Cordell Bank and its surrounding waters offshore northern California, as described in Article 2, are hereby designated as the Cordell Bank National Marine Sanctuary (the Sanctuary) for the purpose of protecting and conserving that special, discrete, highly productive marine area and ensuring the continued availability of the conservation, ecological, research, educational, aesthetic, historical, and recreational resources therein.

Article I. Effect of Designation

The Sanctuary was designated on May 24, 1989 (54 FR 22417). Section 308 of the National Marine Sanctuaries Act, 16 U.S.C. 1431

et seq.

(NMSA), authorizes the issuance of such regulations as are necessary to implement the designation, including managing, protecting and conserving the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and aesthetic resources and qualities of the Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that are either to be regulated on the effective date of final rulemaking or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless Section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made.

Article II. Description of the Area

The Sanctuary consists of a 399 square nautical mile area of marine waters and the submerged lands thereunder encompassed by a boundary extending approxi mately 250° from the northernmost boundary of Gulf of the Farallones National Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of the Bank, then south along this isobath to the GFNMS boundary and back to the northeast along this boundary to the beginning point. The precise boundaries are set forth in the regulations.

Article III. Characteristics of the Area That Give It Particular Value

Cordell Bank is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive environment in a discrete, well-defined area. In addition, the Bank and its surrounding waters may contain historical resources of national significance. The Bank consists of a series of steep-sided ridges and narrow pinnacles rising from the edge of the continental shelf. It lies on a plateau 300 to 400 feet (91 to 122 meters) deep and ascends to within about 115 feet (35 meters) of the surface at its shallowest point. The seasonal upwelling of nutrient-rich bottom waters and wide depth ranges in the vicinity, have led to a unique association of subtidal and oceanic species. The vigorous biological community flourishing at Cordell Bank includes an exceptional assortment of algae, invertebrates, fishes, marine mammals and seabirds.

Article IV. Scope of Regulation

Section 1. Activities Subject to Regulation

a. Depositing or discharging any material or substance;

b. Removing, taking, or injuring or attempting to remove, take, or injure benthic invertebrates or algae located on the Bank or on or within the line representing the 50 fathom isobath surrounding the Bank;

c. Hydrocarbon (oil and gas) activities within the Sanctuary;

d. Anchoring on the Bank or on or within the line representing the 50 fathom isobath surrounding the Bank;

e. Activities regarding cultural or historical resources;

f. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary;

g. Taking or possessing any marine mammal, marine reptile, or bird except as permitted under the Marine Mammal Protection Act, Endangered Species Act or Migratory Bird Treaty Act; and

h. Introducing or otherwise releasing from within or into the Sanctuary an introduced species.

Section 2. Consistency With International Law

The regulations governing activities listed in Section 1 of this Article shall apply to foreign flag vessels and foreign persons only to the extent consistent with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party.

Section 3. Emergency Regulations

Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in Section 1 of this Article, are subject to immediate temporary regulation, including prohibition, within the limits of the Act on an emergency basis for a period not to exceed 120 days.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing

The regulation of fishing is not authorized under Article IV. All regulatory programs pertaining to fishing, including Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801

et seq.

(“Magnuson-Stevens Act”), shall remain in effect. All permits, licenses, approvals, and other authorizations issued pursuant to the Magnuson-Stevens Act shall be valid within the Sanctuary. However, all fishing vessels are subject to regulation under Article IV with respect to discharges and anchoring.

Section 2. Defense Activities

The regulation of activities listed in Article IV shall not prohibit any Department of Defense (DOD) activities that are necessary for national defense. All such activities being carried out by DOD within the Sanctuary on the effective date of designation shall be exempt from any prohibitions contained in the Sanctuary regulations. Additional DOD activities initiated after the effective date of designation that are necessary for national defense will be exempted after consultation between the Department of Commerce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, shall be subject to all prohibitions contained in the Sanctuary regulations.

Section 3. Other Programs

All applicable regulatory programs shall remain in effect, and all permits, licenses, approvals, and other authorizations issued pursuant to those programs shall be valid unless prohibited by regulations implementing Article IV.

Article VI. Alterations to This Designation

[END OF DESIGNATION DOCUMENT]

C. Revisions to the MBNMS Terms of Designation

NOAA is revising the MBNMS terms of designation to:

• Add Davidson Seamount Management Zone;

• Revise the description of activities that may be regulated to include additional activities; and

• Make minor updates to ensure the text reflects the current text of the NMSA and to ensure its description of the area is current.

1. Add Davidson Seamount Management Zone

NOAA is amending the MBNMS boundary description to include the Davidson Seamount Management Zone, a 775 square statute mile (585 square nautical mile) area defined by the geodetic lines connecting the coordinates provided in Appendix F to this subpart. The Davidson Seamount is located approximately 80 statute miles (70 nmi) to the southwest of Monterey, due west of San Simeon, and is home to a diverse assemblage of deep water organisms. This highly diverse community includes many endemic species and fragile, long-lived cold-water corals and sponges. NOAA also updates Article III, Characteristics of the Area that Give it Particular Value to include a discussion of the Davidson Seamount Management Zone.

2. List of Regulated Activities

NOAA is revising the MBNMS terms of designation to modify the list of activities that may be regulated. A priority issue identified during the management plan review was addressing the threat posed by introduced species. One of the recommended strategies for addressing this issue was to develop regulations prohibiting such releases. In addition, NOAA modifies the terms of designation to authorize regulation of the possession of a Sanctuary historical resource wherever the resource is found. The existing designation document currently lists as subject to regulation “possessing within the Sanctuary a Sanctuary resource * * * ”. NOAA is making clear that a prohibition against possession of Sanctuary historical resources would apply outside the Sanctuary boundaries (e.g., at a harbor).

With these changes, the revised terms of designation now authorize regulation of: Activities regarding cultural or historic resources; placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; taking or possessing any marine mammal, sea turtle, or bird; introducing or otherwise releasing an introduced species from within or into the Sanctuary; and drilling into, dredging, altering, or constructing on the submerged lands.

3. Updates

NOAA is also modifying the MBNMS terms of designation to make minor punctuation improvements and to delete Appendices I and II of the MBNMS Designation Document and refer to the site regulations for sanctuary seaward boundaries and the location of four sites designated for disposal of dredged material. NOAA is also deleting outdated language related to study areas for dredged material disposal sites outside the MBNMS boundaries.

REVISED TERMS OF DESIGNATION DOCUMENT FOR THE MONTEREY BAY NATIONAL MARINE SANCTUARY

Preamble

Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (the “Act”), 16 U.S.C. 1431

et seq.

, Monterey Bay and the Davidson Seamount, and their surrounding waters offshore of central California, and the submerged lands under Monterey Bay and its surrounding waters, as described in Article II, and the Davidson Seamount Management Zone, as described in Article II, are hereby designated as the Monterey Bay National Marine Sanctuary (the Sanctuary) for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and

esthetic resources and qualities of the area.

Article I. Effect of Designation

The Act authorizes the issuance of such regulations as are necessary and reasonable to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, research, educational, and esthetic resources and qualities of the Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that either are to be regulated on the effective date of designation or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made.

Article II. Description of the Area

The Sanctuary consists of two separate areas. (a) The first area consists of an area of approximately 4017 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in Appendix A of the site regulations except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in Appendix A of the site regulations.

(b) The Davidson Seamount Management Zone (DSMZ) is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ boundary are provided in Appendix F of the site regulations.

Article III. Characteristics of the Area That Give It Particular Value

The Monterey Bay area is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive ecosystem and a wide variety of marine habitat. The area is characterized by a narrow continental shelf fringed by a variety of coastal types. The Monterey Submarine Canyon is unique in its size, configuration, and proximity to shore. This canyon system provides habitat for pelagic communities and, along with other distinct bathymetric features, may modify currents and act to enrich local waters through strong seasonal upwelling. Monterey Bay itself is a rare geological feature, as it is one of the few large embayments along the Pacific coast.

The Monterey Bay area has a highly diverse floral and faunal component. Algal diversity is extremely high and the concentrations of pinnipeds, whales, otters and some seabird species are outstanding. The fish populations, particularly in Monterey Bay, are generally abundant and the variety of crustaceans and other invertebrates is high.

In addition there are many direct and indirect human uses of the area. The most important economic activity directly dependent on the resources is commercial fishing, which has played an important role in the history of Monterey Bay and continues to be of great economic value.

The diverse resources of the Monterey Bay area are enjoyed by the residents of this area as well as numerous visitors. The population of Monterey and Santa Cruz counties is rapidly expanding and is based in large part on the attractiveness of the area's natural beauty. The high water quality and the resulting variety of biota and their proximity to shore is one of the prime reasons for the international renown of the area as a prime tourist location. The quality and abundance of the natural resources have attracted human beings from the earliest prehistoric times to the present and as a result the area contains significant historical, e.g., archaeological and paleontological, resources, such as Costanoan Indian midden deposits, aboriginal remains, and sunken ships and aircraft.

The biological and physical characteristics of the Monterey Bay area combine to provide outstanding opportunities for scientific research on many aspects of marine ecosystems. The diverse habitats are readily accessible to researchers. These research institutions are exceptional resources with a long history of research and large databases possessing a considerable amount of baseline information on the Bay and its resources, providing interpretive exhibits of the marine environment, docent programs serving the public and marine related programs for school groups and teachers.

The Davidson Seamount located offshore of California, 70 nmi southwest of Monterey, due west of San Simeon, and is one of the largest known seamounts in U.S. waters. Davidson Seamount is twenty-six statute miles long and eight statute miles wide. From base to crest, Davidson Seamount is 7,480 feet (2,280 meters) tall; yet still 4,101 feet (1,250 meters) below the sea surface. Davidson Seamount has an atypical seamount shape, having northeast-trending ridges created by a type of volcanism only recently described. It last erupted about 12 million years ago. This large geographic feature was the first underwater formation to be characterized as a “seamount” and was named after the Coast and Geodetic Survey (forerunner to the National Ocean Service) scientist George Davidson. Davidson Seamount's geographical importance is due to its location in the California Current, which likely provides a larger flux of carbon (food) to the sessile organisms on the seamount surface relative to a majority of other seamounts in the Pacific and may have unique links to the nearby Partington and Monterey submarine canyons.

The surface water habitat of the Davidson Seamount hosts a variety of seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, shearwaters, sperm whales, killer whales, albacore

tuna, and ocean sunfish. Organisms in the midwater habitat have a patchy distribution, e.g., jellies and swimming worms, with marine snow, organic matter that continually “rains” down from the sea surface, providing an important food source for deep-sea animals. The seamount crest habitat is the most diverse of habitats in the Davidson Seamount area, including large gorgonian coral (e.g.,

Paragorgia

sp.) forests, vast sponge fields (many undescribed species), crabs, deep-sea fishes, shrimp, and basket stars. The seamount slope habitat is composed of cobble and rocky areas interspersed with areas of ash and sediment, and hosts a diverse assemblage of sessile invertebrates and rare deep-sea fishes. The seamount base habitat is the interface between rocky outcrops and the flat, deep soft bottom habitat.

Davidson Seamount is home to previously undiscovered species and species assemblages, such as large patches of corals and sponges, where there is an opportunity to discover unique associations between species and other ecological processes. The high biological diversity of these assemblages has not been found on other California seamounts. Davidson Seamount's importance for conservation revolves around the endemism of seamount species, potential future harvest damage to coral and sponge assemblages, and the low resilience of these species. Abundant and large, fragile species (e.g., corals greater than eight feet tall, and at least 200 years old, as well as vast fields of sponges) and a physically undisturbed seafloor appear relatively pristine.

The final environmental impact statements (1992 and 2008) provide more detail on the characteristics of the Monterey Bay and Davidson Seamount area that give it particular value.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation

The following activities are subject to regulation, including prohibition, to the extent necessary and reasonable to ensure the protection and management of the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the Sanctuary:

a. Exploring for, developing, or producing oil, gas, or minerals (e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous ores, or any other solid material or other matter of commercial value) within the Sanctuary;

b. Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter, except dredged material deposited at disposal sites authorized prior to the effective date of Sanctuary designation, as described in Appendix C to the regulations, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on the effective date of Sanctuary designation;

c. Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except dredged material deposited at the authorized disposal sites described in Appendix D to the site regulations, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval;

d. Taking, removing, moving, catching, collecting, harvesting, feeding, injuring, destroying, or causing the loss of, or attempting to take, remove, move, catch, collect, harvest, feed, injure, destroy, or cause the loss of, a marine mammal, sea turtle, seabird, historical resource, or other Sanctuary resource;

e. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary;

f. Possessing within the Sanctuary a Sanctuary resource or any other resource, regardless of where taken, removed, moved, caught, collected, or harvested, that, if it had been found within the Sanctuary, would be a Sanctuary resource;

g. Possessing any Sanctuary historical resource;

h. Flying a motorized aircraft above the Sanctuary;

i. Operating a vessel (i.e., water craft of any description) within the Sanctuary;

j. Aquaculture or kelp harvesting within the Sanctuary;

k. Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act; and

l. Introducing or otherwise releasing from within or into the Sanctuary an introduced species.

Section 2. Emergencies

Article V. Effect on Leases, Permits, Licenses, and Rights

Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, license, approval, or other authorization issued by any Federal, State or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce or designee as a result of this designation or as a result of any Sanctuary regulation if such authorization or right was in existence on the effective date of this designation. The Secretary of Commerce or designee, however, may regulate the exercise (including, but not limited to, the imposition of terms and conditions) of such authorization or right consistent with the purposes for which the Sanctuary is designated.

In no event may the Secretary or designee issue a permit authorizing, or otherwise approve: (1) The exploration for, development of or production of oil, gas, or minerals within the Sanctuary except for limited, small-scale jade collection in the Jade Cove area of the Sanctuary [defined as the area bounded by the 35.92222 N latitude parallel (coastal reference point: beach access stairway at South Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: westernmost tip of Cape San Martin), and the mean high tide line seaward to the 90 foot isobath (depth line)]; (2) the discharge of primary-treated sewage (except for regulation, pursuant to section 304(c)(1) of the Act, of the exercise of valid authorizations in existence on the effective date of Sanctuary designation and issued by other authorities of competent jurisdiction); or (3) the disposal of dredged material within the Sanctuary other than at sites authorized by the U.S. Environmental Protection Agency (in consultation with the U.S. Army Corps of Engineers) prior to the effective date of designation. Any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary shall be invalid.

Article VI. Alterations to This Designation

appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee.

[END OF DESIGNATION DOCUMENT]

III. Summary of Regulatory Amendments

This section describes the changes NOAA is making to the regulations for the CBNMS, GFNMS, and the MBNMS (hereinafter the “Sanctuaries”) to implement the management plan reviews for the three sanctuaries. Because the rationale behind the amendments to each sanctuary's regulations is similar or the same, the discussion of the changes has been grouped by subject area, except where explicitly noted otherwise. References in this section to “former regulations” are to the state of the regulations as they existed before this final rule becomes effective.

A. Update and Clarify the Regulations on Discharges

NOAA is modifying the regulatory prohibition on discharging or depositing material or other matter (hereafter “discharge regulations”) into the Sanctuaries. The following regulatory changes are made to all three sanctuaries unless otherwise specified.

1. This rule clarifies the prohibition on discharging or depositing any material or other matter to make it clear that the regulation applies to discharges and deposits “from within or into” the Sanctuaries. Adding the word “into” is intended to clarify that the prohibition applies not only to discharges and deposits originating in the Sanctuaries (e.g., from vessels in the Sanctuaries), but also, for example, from discharges and deposits above the Sanctuaries.

2. This rule clarifies that the exception to the discharge/deposit prohibition for fish, fish parts, or chumming materials (bait) applies only to discharges or deposits made during the conduct of lawful fishing activities within the Sanctuaries.

3. This rule clarifies that the exception to the discharge prohibition for biodegradable effluent discharges/deposits from marine sanitation devices applies only to operable Type I or II marine sanitation devices approved by the United States Coast Guard in accordance with the Federal Water Pollution Control Act, as amended. Although the exception for vessel wastes “generated by marine sanitation devices” was intended to prohibit the discharge of untreated sewage into the Sanctuaries, it was unclear if it allowed discharges from Type III marine sanitation devices. Therefore, NOAA modifies its regulations to clarify that such discharges are only allowed if generated by properly functioning Type I or II marine sanitation devices. Type I and Type II marine sanitation devices treat wastes, but Type III marine sanitation devices store waste until it is removed at designated pump-out stations on shore or discharged at sea. Finally, the revised regulations also require vessel operators to lock all marine sanitation devices in a manner that prevents the discharge of untreated sewage. This requirement would aid in enforcement and compliance with Sanctuary regulations.

Note that in the response to comments “biodegradable” has been replaced with “clean.” See Section IV.

4. This rule eliminates the exception for discharging or depositing food waste resulting from meals onboard vessels into CBNMS and GFNMS. Coast Guard regulations prohibit all discharges of food wastes (garbage) within three nmi of land and require that they be ground to less than one inch when discharged between three and twelve nmi of land. This rule modifies the regulations for CBNMS and GFNMS to mirror the Coast Guard regulations, and to be consistent with the MBNMS regulations. This amendment provides increased protection to sanctuary resources and qualities from such marine debris vis-à-vis the Coast Guard regulations in the area of the two sanctuaries beyond three nmi.

5. This rule prohibits discharges/deposits originating beyond the boundary of the GFNMS that subsequently enters the sanctuary and injures a sanctuary resource or quality. “Sanctuary resource” is defined at 15 CFR 922.3 as “any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources.” “Sanctuary quality” is defined at 15 CFR 922.3 as “any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of the Sanctuary, including, but not limited to, water quality, sediment quality and air quality.” This modification will help protect sanctuary resources and qualities from harmful influences originating outside the boundaries of the GFNMS. The coastal waters of the sanctuary, particularly the estuarine habitats of Bolinas Lagoon, Tomales Bay, Estero Americano and Estero de San Antonio, are vulnerable to land-based nonpoint source pollution from outside the sanctuary. Sources of concern include runoff, agriculture, marinas and boating activities, past mining, and aging and undersized septic systems. Water quality in offshore areas of the sanctuary could be threatened or impacted by large or continuous discharges from shore, spills by vessels, illegal dumping activities or residual contaminants from past dumping activities. The threat of an offshore oil spill is a constant reality near the busy shipping lanes in and adjacent to the sanctuary. CBNMS and MBNMS regulations already prohibit this activity. This modification makes the discharge/deposit regulations for the three sanctuaries consistent.

6. This rule eliminates in the GFNMS regulations the exceptions at § 922.84 for the disposal of dredged material at the interim dumpsite and the discharge of municipal sewage because they are no longer necessary. The exception for the disposal of dredged material at the “interim dumpsite” is no longer necessary because this site is no longer being used as a permanent dumpsite. The interim dumpsite, located approximately 10 nmi south of Southeast Farallon Island, is no longer in use. The permanent dumpsite outside the sanctuary has been in use for more than fifteen years, making this exception unnecessary. Similarly, since the designation of the sanctuary in 1981, there have been no applications to discharge municipal sewage into the sanctuary. Thus, this exception is also unnecessary. By removing these two exceptions, the discharge/deposit regulation has been streamlined, focusing on current and necessary exceptions to the prohibition.

7. In addition, this rule clarifies that current exceptions to the prohibition on discharges/deposits from vessels for graywater and deck wash down must be clean, meaning not containing detectable levels of harmful matter as defined. It clarifies that discharges/deposits from clean vessel deck wash down, clean vessel generator cooling water, clean vessel engine cooling water, clean bilge water, and anchor wash are excepted from the discharge/deposit prohibition. The discharge/deposit of oily wastes from bilge pumping has been and continues to be prohibited. However, this rule modifies

this prohibition by requiring that all bilge discharges/deposits be clean, meaning not containing detectable levels of harmful matter as defined. For purposes of determining detectable levels of oil in bilge discharges/deposits, a detectable level of oil is interpreted here to include anything that produces a visible sheen. This rule provides clarification regarding permitted contents of bilge water discharges/deposits.

The discharge/deposit of ballast water is already prohibited.

B. Prohibit Certain Discharges From Cruise Ships and Large Vessels

This rule amends the discharge regulations for the Sanctuaries to narrow the types of vessels that may discharge certain types of material or other matter.

This rule prohibits vessels 300 GRT or greater with sufficient holding tank capacity from discharging or depositing graywater, and effluent from any type of marine sanitation device. In the GFNMS and CBNMS the discharge/deposit of graywater is already prohibited and that remains unchanged. The former regulations did not make a distinction between sizes of vessels for discharge purposes. The regulations prohibiting discharge/deposit of treated sewage from vessels 300 GRT or more are consistent with existing state law applicable to state waters. The regulations now extend the prohibition to all waters of the national marine sanctuaries including federal waters. The regulation does not restrict vessels without capacity to hold the waste while in a national marine sanctuary.

The revised regulation better addresses NOAA's concerns about the potential impacts of discharges/deposits from large vessels in the Sanctuaries. Blackwater from vessels includes raw or treated sewage. Such discharges are more concentrated than domestic land-based sewage and may introduce disease-causing microorganisms (pathogens), such as bacteria, protozoans, and viruses, into the marine environment (EPA 2007). They may also contain high concentrations of nutrients that can lead to eutrophication (the process that can cause oxygen-depleted “dead zones” in aquatic environments), and may yield unpleasant esthetic impacts to the Sanctuary (diminishing Sanctuary resources and its ecological, conservation, esthetic, recreational and other qualities).

Graywater from vessels includes wastewater from showers, baths, and galleys. Graywater can contain a variety of substances including (but not limited to) detergents, oil and grease, pesticides and food wastes (Eley 2000). Very little research has been done on the impacts of graywater on the marine environment, but many of the chemicals commonly found in graywater are known to be toxic (Casanova

et al.

2001). These chemicals have been implicated in the occurrence of cancerous growths in bottom-dwelling fish (Mix 1986). Furthermore, studies of graywater discharges from large cruise ships in Alaska (prior to strict state effluent standards for cruise ship graywater discharges) found very high levels of fecal coliform in large cruise ship graywater (well exceeding the federal standards for fecal coliform from Type II MSDs). These same studies also found high mean total suspended solids in some graywater sources (exceeding the federal standards for total suspended solids from Type II MSDs).

2. This rule revises the discharge/deposit regulations to implement additional restrictions on cruise ships. Under the revised discharge/deposit regulations, cruise ships are allowed to discharge or deposit only clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, and anchor wash into the Sanctuaries. Other discharges or deposits are no longer allowed in the Sanctuaries. Cruise ship discharges and deposits are more stringently regulated than other vessels to reduce the adverse effects on the marine environment from this growing source of pollutants.

The strict prohibition on cruise ships protects sanctuary water quality from the potentially large volume of wastewater that may be discharged by these vessels, while allowing them to continue to transit the Sanctuaries. “Cruise ship” is defined to mean: a vessel with 250 or more passenger berths for hire. Currently 643,000 cruise ship passengers embark annually from California ports in San Francisco Bay, Los Angeles, and San Diego. Ninety cruise ship arrivals and departures (Metropolitan Stevedore Company) were estimated at the San Francisco Passenger Terminal in 2006. Many of these cruise ships enter and exit the Bay through the northbound vessel traffic lanes, which transit through the Sanctuaries. Although partly constrained by the lack of local docking facilities, cruise ship visits are likely to increase as the fleet shifts from international to more domestic cruises, and as they begin to use a new cruise ship docking facility planned for San Francisco Bay.

Due to their sheer size and passenger capacity, cruise ships are able to generate larger volumes of a wide array of pollutants, which can cause serious impacts to the marine environment. The main pollutants generated by a cruise ship are: sewage, also referred to as blackwater; graywater; oily bilge water; hazardous wastes, and solid wastes. The large volumes of discharged effluent associated with cruise ships may not adequately disperse to avoid harm to marine resources. Based on EPA estimates, in one week a 3000-passenger cruise ship generates about 210,000 gallons of sewage, 1,000,000 gallons of graywater, 37,000 gallons of oily bilge water, more than 8 tons of solid waste, millions of gallons of ballast water containing potential invasive species, and toxic wastes from dry cleaning and photo-processing laboratories. Additionally, the volume of material from a cruise ship resulting from deck washdown greatly exceeds the volumes associated with other vessels used in the Sanctuaries. Although several laws and regulations partly address these issues, this regulation is needed to ensure a more comprehensive prohibition on cruise ship discharges/deposits within the Sanctuaries.

C. Clarify and Update the Regulation on Disturbing Sanctuary Areas

To ensure consistency among the regulations for the Sanctuaries, this rule implements a prohibition on drilling into, dredging, or otherwise altering the submerged lands, or constructing, placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuaries. While this prohibition has been in effect for the MBNMS since 1992, this is a new prohibition for the CBNMS, and updates the regulations for the GFNMS. As described below, this rule maintains some differences in the exceptions to the prohibition for the different sanctuaries.

This rule makes a technical change to the regulations by replacing the term “seabed” with “submerged lands” throughout the regulations for the Sanctuaries in order to be consistent with the NMSA, and to ensure that certain estuarine areas within the MBNMS, such as Elkhorn Slough, are described accurately. This change is necessary to eliminate any confusion created by the term “seabed.”

This rule makes additional changes to the regulations for the GFNMS and the CBNMS to implement new prohibitions regarding disturbance to the submerged lands in these two sanctuaries. The revised regulations prohibit abandoning structures, materials, or other matter, for these two sanctuaries. The term “abandoning” means leaving without intent to remove, any structure, material, or other matter on or in the

submerged lands of the Sanctuaries. In addition to this provision, this rule implements a new provision in the CBNMS that prohibits drilling into, dredging or otherwise altering the submerged lands.

These prohibitions as they apply to the area within the 50-fathom isobath of the CBNMS, do not apply to use of bottom contact gear used during fishing activities. This activity is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). These prohibitions as they apply to the area outside of the 50-fathom isobath of the CBNMS, do not apply to the anchoring of any vessels, or the lawful use of fishing gear during normal fishing activities. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to the regulations. This regulation ensures the prominent geological features of the Bank, such as the pinnacles and ridges, are protected from permanent destruction from activities such as anchoring or exploratory activity.

For the GFNMS, NOAA revises the exception for the laying of pipelines related to hydrocarbon operations to clarify that the laying of pipelines is specifically limited to hydrocarbon operations that are adjacent to the GFNMS (i.e., bordering) rather than anywhere outside the sanctuary. This revision is made to protect sensitive sanctuary benthic habitats from impacts from disturbance. Additionally, in the GFNMS regulations, NOAA revises the prohibition regarding disturbance to the submerged lands, by removing the exception for ecological maintenance in the GFNMS regulations (formerly at 15 CFR 922.82(a)(3)(iii)). Ecological maintenance is not defined in the regulations or administrative record, which made it difficult to interpret, and thus the definition was removed to streamline the regulatory language. There is no record of the use of the ecological maintenance exception.

There are no exceptions to the prohibition against disturbing the submerged lands within the Davidson Seamount Management Zone of the MBNMS, other than as incidental and necessary to the conduct of lawful fishing activities. Fishing in the Davidson Seamount Management Zone below 3000 feet is prohibited under 50 CFR 660 (Fisheries off West Coast States). Please see the discussion on the Davidson Seamount Management Zone below for more information.

This regulation helps protect the Sanctuaries from, for example, unwanted debris, and adds protection to the shallow sand and mud deposits that make up the surrounding soft bottom of the continental shelf and slope of CBNMS, which are important habitats that provide support for the living resources of the sanctuary.

D. Prohibit the Desertion of Vessels

NOAA modifies the regulations for the GFNMS and MBNMS to prohibit the desertion of a vessel within these two sanctuaries. Leaving vessels unattended increases the likelihood of a calamitous event or the risk of sinking. These events could result in the discharge of harmful toxins, chemicals or oils into the marine environment, reducing water quality and impacting biological resources and habitats. In addition, the vessel itself could cause injury. This revision is not made for the CBNMS because that site is offshore and vessel abandonment is not a pressing resource issue.

To address concerns regarding the threats to the marine environment from deserted vessels, NOAA is prohibiting deserting a vessel aground, at anchor, or adrift in the GFNMS and the MBNMS. The term “deserting” means leaving a vessel aground or adrift: (1) Without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification; (2) after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts; or (3) when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel's condition being reported to authorities. Deserting also means leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner.

This rule also prohibits leaving harmful matter aboard a grounded or deserted vessel in the GFNMS and MBNMS. Once a vessel is grounded or deserted, there is a high risk of discharge/deposit of harmful matter into the marine environment. Harmful matter aboard a deserted vessel also poses a threat to water quality. Preemptive removal of harmful matter (

e.g.

, motor oil) was not required by the former regulations. The prohibition implemented by this rule helps reduce or avoid harm to sanctuary resources and qualities from potential leakage of hazardous or other harmful matter from a vessel. This revision is not made for the CBNMS because that site is offshore and leaving harmful matter on abandoned vessels is not a pressing resource issue.

E. Clarify the Prohibition on Disturbing Historic Resources

NOAA modifies the regulation for the GFNMS and MBNMS to amend the prohibitions regarding removing or damaging any historical or cultural resource. For the GFNMS, this rule adds “moving” and “possessing” to the existing prohibition; replaces “damage” with “injure,” a term defined at 15 CFR 922.3; and adds the word “attempting” to move, remove, injure, or possess as a prohibition. This modification provides added protection to the fragile, finite, and non-renewable resources so they may be studied, and appropriate information may be made available for the benefit of the public. (The MBNMS regulations already contain these terms.)

For the GFNMS, this rule replaces the phrase “historical or cultural resource” with “Sanctuary historical resource” to be consistent with regulatory language used at more recently designated national marine sanctuaries,

e.g.

, the MBNMS. The term “historical resource” is defined in NMSP program-wide regulations as “any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events. Historical resources include “submerged cultural resources,” and “historical properties,” as defined in the National Historic Preservation Act, as amended, and its implementing regulations, as amended.” (15 CFR 922.3).

This rule prohibits the possession of a sanctuary historical resource either within or outside the sanctuary. The clarification will increase protection of sanctuary resources by making it illegal to possess historical resources in any geographic location. For example, this rule makes it illegal to have an artifact taken from a shipwreck in MBNMS even if you are no longer in the sanctuary.

F. Prohibit the Take and Possession of Certain Species

NOAA modifies its regulations for the GFNMS and the CBNMS to include a new prohibition on take of marine mammals, birds, and sea turtles, except as authorized by the Marine Mammal Protection Act, as amended (16 U.S.C. 1361

et seq.

) (MMPA), Endangered Species Act, as amended (16 U.S.C. 1531

et seq.

) (ESA), Migratory Bird Treaty Act, as amended (16 U.S.C. 703

et seq.

) (MBTA), or any regulation, as amended, promulgated under one of these acts. “Take” is defined in the

NMSP program-wide regulations at 15 CFR 922.3. This rule prohibits possessing within the CBNMS and the GFNMS (regardless of where taken, moved, or removed from) any marine mammal, bird (including, but not limited to, seabirds, shorebirds and waterfowl) within or above the two sanctuaries or sea turtle except as authorized under the MMPA, the ESA, the MBTA, and any regulations, as amended, promulgated under these acts. This regulation provides a stronger deterrent for violations of existing laws designed to protect marine mammals, birds, or sea turtles, than that offered by those other laws alone and is consistent with regulatory language used at more recently designated national marine sanctuaries,

e.g.

, the MBNMS. This regulation does not apply to activities (including a federally or state-approved fishery) that have been authorized under the MMPA, ESA, or MBTA or an implementing regulation. Therefore, under this regulation, if the National Marine Fisheries Service (NMFS) or the United States Fish and Wildlife Service (USFWS) issues a permit for, or otherwise authorizes, the take of a marine mammal, bird, or sea turtle, the permitted or authorized taking is allowed under this rule and would not require an additional sanctuary permit unless the activity also violates another provision of the sanctuary's regulations.

The intent of this regulation is to bring a special focus to the protection of the diverse and vital marine mammal, bird, and sea turtle populations of the Sanctuaries. This area-specific focus is complementary to efforts of other resource protection agencies, especially given that other federal and state authorities spread limited resources over much wider geographic areas.

This prohibition also complements the provisions of the GFNMS regulations prohibiting disturbing birds or marine mammals by flying motorized aircraft at less than 1000 feet over the waters within one nmi of the Farallon Islands, Bolinas Lagoon, or any ASBS. This provision remains unique and important in that it provides special focus on a specific type of activity, operation of motorized aircraft, within particularly sensitive environments of the GFNMS. The MBNMS regulations already contain this take and possession prohibition. There is a minor wording change to conform to the new GFNMS and CBNMS prohibition.

G. Prohibit the Introduction of Introduced Species

This rule prohibits introducing or otherwise releasing from within or into the Sanctuaries an introduced species, except: (1) striped bass (

Morone saxatilis

) released in the Sanctuaries during catch and release fishing; and (2) species cultivated by mariculture in Tomales Bay (in the GFNMS), pursuant to a valid lease, permit, license or other authorization issued by the State of California.

The term “introduced species” is defined as: any species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.

During consultations with the State of California, concern was expressed that striped bass would qualify as an introduced species and that an angler who catches and then releases a striped bass would be in violation of the proposed regulation. While prohibiting such activity is not the intent of the regulation, to address this concern, the regulation now exempts striped bass, the only introduced species for which there is an active fishery. Striped bass were intentionally introduced in California in 1879, and in 1980 the California Department of Fish and Game initiated a striped bass hatchery program to support the striped bass sport fishery, which according to the California Department of Fish and Game is an important fishery on the Pacific Coast. The California Department of Fish and Game manages the striped bass fishery through a Striped Bass Management Conservation Plan.

The prohibition also does not apply to species cultivated by mariculture activities in Tomales Bay in the GFNMS, pursuant to a valid lease, permit, license or other authorization issued by the State of California. There are twelve active state water bottom mariculture leases in Tomales Bay managed by the California Department of Fish and Game. Three leases have been recently renewed: M-430-19 (Marin Oyster Company, 2001), M430-05 (Tomales Bay Oyster Company, 2002), and M-430-06 (Cove Mussel Company, 2002).

The other nine leases were issued in the 1980s and have not yet come up for renewal. The exception to the introduced species prohibition grandfathers in the renewals of existing current lease agreements in effect on the effective date of the final regulation that allow for the introduction of introduced species as specified in these original lease agreements. However, new lease agreements executed after the effective date of this rule are subject to this prohibition. Operations conducted under new lease agreements could cultivate native species but not introduced species. NOAA is not aware of any pending lease applications.

The prohibition against introducing species into the Sanctuaries is designed to help reduce the risk from introduced species, including their seeds, eggs, spores, and other biological material capable of propagating. The intent of the prohibition is to prevent injury to the Sanctuaries' resources and qualities, to protect the biodiversity of sanctuary ecosystems, and to preserve the native functional aspects of sanctuary ecosystems, which are put at risk by introduced species. Introduced species may become a new form of predator, competitor, disturber, parasite, or disease that can have devastating effects upon ecosystems. For example, introduced species impacts on native coastal marine species of the Sanctuaries could include: replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated species; increased intra- or interspecies competition with native species; creation or alteration of original substrate and habitat; hybridization with native species; and direct or indirect toxicity (e.g., toxic diatoms). Changes in species interactions can lead to disrupted nutrient cycles and altered energy flows that ripple with unpredictable results through an entire ecosystem. Introduced species may also pose threats to endangered species and native species diversity.

For example, a number of non-native species now found in the Gulf of the Farallones and Monterey Bay regions were introduced elsewhere on the west coast but have spread through vessel hull-fouling, ballast water discharge, and accidental introductions. In the MBNMS, the European green crab, now found in Elkhorn Slough, both preys on the young of valuable species (such as Dungeness crab) and competes with them for resources. Introduced species may also cause changes in physical habitat structure. For example, burrows caused by the isopod

Sphaeroma quoyanum

, originally from New Zealand and Australia, are found in banks throughout the Elkhorn Slough, and may exacerbate the high rate of tidal erosion in the Slough. Introduced species pose a significant threat to the natural biological communities and ecological processes in the MBNMS and

may have a particularly large impact on the sanctuary's twenty-six threatened and endangered species.

Introduced species are also a major economic and environmental threat to the living resources and habitats of the Sanctuaries as well as the commercial and recreational uses that depend on these resources. Once established, introduced species can be extremely difficult, if not impossible, to eradicate. Introduced species have become increasingly common in recent decades, and the rate of invasions continues to accelerate at a rapid pace. Estuaries are particularly vulnerable to invasion; and large ports, such as San Francisco Bay, can support hundreds of introduced species with significant impacts to native ecosystems.

H. Prohibit the Attraction of White Sharks

This rule expands the prohibition on attracting white sharks in state waters of the MBNMS to the entire MBNMS and GFNMS. It also prohibits approaching within 50 meters of a white shark within 2 nmi around the Farallon Islands. Attract or attracting means the conduct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).

Disturbance related to human interaction is increasing as a result of controversial cage shark diving operations, also known as adventure tourism, and other wildlife watching operations. These activities may degrade the natural environment, impacting the species as a whole, and individual sharks may be negatively impacted from repeated encounters with humans and boats. Implementing these regulations will resolve user conflicts (between shark researchers and adventure tourism) and prevent interference with the seasonal feeding behavior of white sharks. Reducing human interaction and chumming would decrease the impacts on natural shark behavior. This regulation is not expected or intended to impact any current lawful fishing activities within the GFNMS and MBNMS. The purpose of this prohibition is to protect white sharks from intrusive activities during their critical feeding life-cycle in the GFNMS and the MBNMS.

With respect to the MBNMS, this rule modifies the regulations to expand the prohibition against shark attraction to the entire sanctuary. White sharks have experienced disturbance from cage diving operations, filming, and other wildlife watching operations. The former regulations prohibited white shark attraction activities within specific areas of the sanctuary, including the area out to the seaward limit of state waters (three miles from the coastline). This rule extends the prohibition to the entire sanctuary.

I. Prohibit Anchoring in Certain Zones of Tomales Bay in the GFNMS

This rule prohibits anchoring a vessel in a designated no-anchoring seagrass protection zone in Tomales Bay. This prohibition does not apply to vessels anchoring as necessary for mariculture operations that are conducted pursuant to a valid lease, permit, or license. For the purposes of this regulation, anchoring refers to the dropping and placement of an anchor that is attached to a vessel, and which, being cast overboard, retains the vessel in a particular station.

There are a total of seven no-anchoring zones implemented in this regulation, which comprise 22% of the surface area of Tomales Bay. The location and extent of the no-anchoring zones encompass the known seagrass coverage and are based upon seagrass data provided by California Department of Fish and Game from 1992, 2000, 2001 and 2002. The no-anchoring seagrass protection zones include some areas where seagrass coverage is extensive and other areas where coverage is discontinuous and patchy. All zones extend shoreward to the Mean High Water Line (MHWL). Also, the extent of the seagrass beds can change over time. NOAA will review and update periodically the adequacy of these zones, as needed, based on new seagrass monitoring data.

This prohibition protects seagrass beds in Tomales Bay from the destructive effects of anchoring vessels. Seagrass means any species of marine angiosperms (flowering plants) that inhabit portions of the seabed in the Sanctuary. Those species include, but are not limited to:

Zostera asiatica

and

Zostera marina

. Seagrass beds are commonly found in tidal and upper subtidal zones and foster high levels of biological productivity. Seagrass beds are located throughout the sanctuary in estuaries, bays and lagoons, such as Tomales Bay, Bolinas Lagoon, Estero de San Antonio and Estero Americano. Seagrass species within GFNMS jurisdiction, including

Zostera marina

and

Gracilaria spp.

, cover an estimated 397 hectares (1.5 mi

) or 13% of Tomales Bay. The seagrass beds help trap sediments and reduce excess nutrients and pollutants in the water column and thereby contribute towards the Bay's high water quality. Seagrass provides breeding and nursery grounds for fish such as herring, which attach their eggs to the seagrass blades. Seagrass beds also provide important habitats for migratory birds, such as shorebirds, who feed upon the abundant fish and invertebrate species that live in the seagrass beds. Disappearance of this habitat poses a particular threat to vulnerable species worldwide. Seagrass beds also serve as buffer zones in protecting coastal erosion and are a filter for pollutants.

J. Clarify and Update the Use of Motorized Personal Watercraft in MBNMS

This rule (1) updates the definition of motorized personal watercraft (MPWC) for MBNMS, and (2) adds a new seasonal MPWC zone to the Pillar Point area. Implementing this modified definition will help fulfill the original intent of the regulation and its zoning restriction, namely to avoid disturbance and other injury of marine wildlife by MPWCs, minimize user conflicts between MPWC operators and other recreationalists, and continue to provide opportunities for MPWC within the MBNMS. The new MPWC zone is restricted to periods of high surf warnings and during winter months. This additional exception accommodates recreational activities in the area without impacting Sanctuary uses or exacerbating user conflicts.

NOAA received comments that the Mavericks surf break at Half Moon Bay was a unique big wave tow-in surfing location in the continental United States, accessible only by MPWC tow-in techniques and should be given special consideration for MPWC access. See discussion in Appendix A of the DEIS at page 18-19 (of Appendix 1). Based upon the evidence that Mavericks was such a special national sporting venue, NOAA investigated whether allowing MPWC operations at that location could be accomplished in a manner compatible with the Sanctuary's primary goal of marine resource protection. As a result of the review this rule establishes a new MPWC zone off Pillar Point Harbor that will allow for recreational access via MPWC to the Mavericks surf break during National Weather Service High Surf Warnings issued for San Mateo County during December, January, and February. High Surf Warning conditions from December through February are not likely to occur at Mavericks more than 3-4 days per year. These are the conditions that create oversized wave face, for which motorized tow-in support is necessary.

They are the very conditions that big wave tow-in surfers desire and that have made Mavericks a world renowned surf break. Surfers and other water users not operating MPWC will have access to Mavericks year-round, so the presence of MPWC at the site for potentially 1% of the year will not significantly disrupt other recreational activities there. Furthermore, during High Surf Warning conditions, most people do not enter the ocean, further reducing potential user conflicts due to MPWC operations at Mavericks.

MPWC are small, fast, and highly maneuverable craft that possess unconventionally high thrust capability and horsepower relative to their size and weight. Their small size, shallow draft, instant thrust, and “quick reflex” enable them to operate closer to shore and in areas that would commonly pose a hazard to conventional craft operating at comparable speeds. Resources such as sea otters and seabirds are either unable to avoid these craft or are frequently alarmed enough to significantly modify their behavior such as cessation of feeding or abandonment of young. Tow-in surfing activity using MPWC has been increasing at many traditional surfing locations in the MBNMS, regardless of surf conditions. The MBNMS has received complaints by surfers, beachgoers, and coastal residents that the use of MPWC in traditional surfing areas has produced conflicts with other ocean users and has caused disturbance of wildlife. During the designation of the MBNMS, the operation of MPWC in nearshore areas was identified as an activity that should be prohibited to avoid such impacts. NOAA's rationale and authority to impose such restrictions were affirmed in

Personal Watercraft Industry Association, et al.

Department of Commerce

, 48 F.3d 540 (D.C. Cir. 1995). The former regulations restricted MPWC to specific zones within the MBNMS; however, the definition did not cover all types of existing MPWC. Watercraft that were larger and that could accommodate three or more persons were not subject to the regulations because the former definition did not define them as MPWC. The former regulations therefore did not fully address the threat posed by MPWC to marine resources and the issue of user conflict. To address these concerns, the new definition of MPWC covers all categories of MPWC and therefore eliminates the loophole in the former regulations. The changes expand the definition of MPWC to address a broader range of watercraft that are restricted.

Under the new definition, MPWC means (1) any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel; (2) any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard's Maximum Capacities Marking for Load Capacity regulations found at 33 CFR Parts 181 and 183, except submarines; or (3) any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive. Part 1 of the definition focuses on operating characteristics and is not constrained by hull design or propulsion unit specifications. Part 2 focuses on high-speed hull designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and is not constrained by propulsion unit specifications or operating characteristics. Part 3 focuses on jet boats that share the same operating capabilities as craft that meet the definition under parts 1 and 2 but where passengers sit inside the craft.

The new definition is intended to effectively identify all craft of concern without inadvertently restricting other watercraft by including them in the definition. The former definition was insufficient to meet NOAA's original goal of restricting the operation of small, highly maneuverable watercraft within the boundaries of the MBNMS. It did not encompass the majority of MPWC operating within the MBNMS because it was based upon outdated MPWC design characteristics of the early 1990s. Since 1992, MPWC manufacturers have built increasingly larger craft with 3+ passenger riding capacity or varied design characteristics that place these craft outside the former MBNMS regulatory definition. These newer craft effectively skirt the definition, yet they retain or exceed the performance capabilities of their predecessors that pose a threat to Sanctuary resources and qualities. The former definition was based solely upon static design characteristics that have rendered it obsolete and ineffective over time. NOAA has therefore developed a more flexible, integrated three-part definition that will continue to be relevant even in light of continuing MPWC design changes. Should a future MPWC design unexpectedly displace any one part of the definition, one or both of the remaining two parts would still apply to sustain the intent of the definition.

Though the vast majority of MPWC operated in the Sanctuary today are similar to Kawasaki Corporation's classic Jet Ski design, a variety of craft are currently marketed that are equally maneuverable at high speeds, with shallow drafts and powerful thrust/weight ratios. One such innovation involves a remotely operated water-jet propulsion pod controlled via a tow line by a skier behind the pod. Water-jet propelled surf boards are also available. Small, highly maneuverable jet boats have also entered the market. These non-conventional watercraft designs demonstrate the creative variations in MPWC that warrant a more resilient regulatory definition.

Part 1 of the definition is similar to current definitions of MPWC used by the Gulf of the Farallones and Florida Keys National Marine Sanctuaries, the National Park Service, and the State of California's Harbor and Navigation Code. However, it differs by omitting reference to particular hull design, length, or propulsion system in order to prevent the definition from becoming obsolete over time due to the rapidly evolving MPWC design. It also no longer includes a reference to a speed threshold. This language was difficult to enforce and did not sufficiently encompass those vessels of concern to the NOAA. The new definition also identifies a wide variety of riding postures common to the unconventional vessel designs that pose a threat to Sanctuary resources and qualities. These threats arise because these design features increase the vessel's maneuverability and allow riders to enter shallow water zones and areas adjacent to small islands and off-shore rocks used by marine mammals and seabirds as breeding, nursing, and resting areas. Although part 1 identifies the operating characteristics of most vessels of concern at the present time, it alone does not reach all craft of concern. For this reason, parts 2 and 3 were included in the definition.

Part 2 utilizes an existing U.S. Coast Guard regulation to identify many existing and future vessel designs that pose a threat to Sanctuary resources and qualities. The Coast Guard requires special testing for most powered vessels under 20 feet in length. This is due to the unique stability and displacement characteristics of these vessels that affect passenger safety (33 CFR part 183). The weight/size ratio of these small craft presents a higher risk of swamping, capsizing, sinking, and passenger dismount. The Coast Guard requires that the results of the vessel stability tests be printed on a capacity plate affixed to each vessel design for which the special testing is required (33 CFR part 181). A key component of the Coast Guard's regulation is a stability

test. To conduct this test, weight is systematically added to the outer hull until it tips to the waterline, allowing water to flood into the vessel. From such tests, computations can be made to determine the maximum safe passenger and cargo loading capacity for that vessel design.

Some high-speed unconventional vessels (e.g., jet bikes, hovercraft, air boats, and race boats) are designed without carrying spaces that hold water. In other words, their hull designs prevent flooding, because they do not have open hulls into which water will flow. Since this design feature makes it impossible to complete the tests required by 33 CFR Part 183, the manufacturers of such craft routinely seek and receive exemptions from these testing and labeling requirements.

With the exception of submarines, the “powered” surface vessel designs that are exempted from the Coast Guard regulations at 33 CFR parts 181 and 183 (e.g., jet bikes, hovercraft, air boats, and race boats) possess two or more of the following characteristics: Robust buoyancy, are capable of rapid acceleration, are capable of high maneuverability at speed, and have a shallow draft. These and other associated design characteristics afford such vessels unique access and operability within sensitive marine areas (e.g., marine mammal and seabird enclaves). This fact poses a threat to Sanctuary resources and qualities—the same threat that prompted regulatory restrictions on the operation of such hull designs within the MBNMS in 1992. By using the Coast Guard's maximum capacity standard (33 CFR Parts 181 and 183) in part 2 of the definition, NOAA can effectively and precisely identify various vessels of concern while avoiding an excessively complicated and lengthy definition for MPWC. Although part 2 of the definition includes some vessel designs already captured by part 1, it compensates for static aspects of part 1 that could result in a regulatory loophole due to rapidly evolving MPWC designs, as has happened with the former definition.

Parts 1 and 2 largely address problems caused by non-conventional hull designs, which allow the user to enter sensitive and important wildlife habitats. But they do not adequately address the emergence of small, conventional hulls powered by water jet propulsion systems. Jet propulsion systems give vessels many of the same operating characteristics and capabilities of the previously identified vessels of concern (e.g., rapid acceleration, high maneuverability at speed, and shallow draft). They therefore allow these vessels to operate in areas where wildlife is most frequently found. Part 3 was thus developed to include these small craft in the definition. Jet propulsion vessels that are longer than twenty feet do not generally possess these same operational characteristics and capabilities, and are thus excluded from the definition. Further, Coast Guard regulations often categorize small boats as less than 20 feet in length. NOAA has similarly adopted this standard to differentiate between smaller and larger jet-propelled vessels.

K. Incorporate Davidson Seamount Management Zone (DSMZ) Into MBNMS

This rule defines and incorporates the DSMZ into the MBNMS, and establishes a unique set of prohibitions for that area. The shoreward boundary of the DSMZ is located 75 statue miles (65 nmi) due west of San Simeon, and is one of the largest known seamounts in U.S. waters. It is 26 statute miles long and 8 miles wide. From base to crest, the Davidson Seamount is 7,480 feet (2,280 meters) tall, yet it is still 4,101 feet (1,250 meters) below the sea surface. Threats from fishing are relatively remote; the top of the seamount is too deep for most fish trawling technology. However, future fishing efforts could target the seamount.

NOAA determined the Davidson Seamount requires protection from the take or other injury to benthic organisms or those organisms living near the sea floor because of the seamount's special ecological and fragile qualities and potential future threats that could adversely affect these qualities. For example, the crest of the seamount supports large gorgonian coral forests, vast sponge fields, crabs, deep sea fishes, shrimp and basket stars.

NOAA consulted with the Pacific Fishery Management Council (PFMC) on the most appropriate level of resource protection for the Davidson Seamount and the various means for achieving it. This consultation coincided with the culmination of the PFMC's separate, longer-term efforts to identify and protect Essential Fish Habitat (EFH) on the West Coast. The PFMC unanimously supported the incorporation of the seamount into the MBNMS, but recommended that protection from fishing impacts be achieved by including Davidson Seamount as one of the areas considered for protection as EFH under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (at 50 CFR part 660). NOAA subsequently approved and implemented this recommendation by designating Davidson Seamount as EFH and prohibiting all fishing below 3000 feet in the area proposed to be included in the MBNMS (71 FR 27408, May 11, 2006).

In order to protect its resources and provide opportunities for a better understanding of the seamount, this rule incorporates into the MBNMS a square area of approximately 29 statute miles (25 nmi) per side. The incorporated area includes the water and submerged lands thereunder. This rule prohibits moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any sanctuary resource located more than 3,000 feet below the sea surface within the DSMZ. It also prohibits possessing any sanctuary resource the source of which is more than 3,000 feet below the sea surface within the DSMZ. Although the prohibitions do not apply to commercial and recreational fishing (or possession resulting from such activity) below 3000 feet within the DSMZ, these activities are prohibited under 50 CFR part 660 (Fisheries off West Coast States). The Sanctuary regulations do, however, prohibit resource extraction conducted for research purposes, as research extraction is not within the scope of 50 CFR part 660.

Preexisting Activities in the DSMZ

Military activities.

Most of the prohibitions in the MBNMS regulations do not apply to military activities that were conducted by the Department of Defense prior to the 1992 designation of the MBNMS and listed in the 1992 FEIS. For purposes of the DSMZ, the date of designation is the effective date of this rule and the germane FEIS is the 2008 FEIS. This means that the military activities identified in the 2008 FEIS are exempted from the indicated MBNMS regulations within the DSMZ.

Non-military activities.

Section 304(c) of the NMSA provides that: “Nothing in this chapter shall be construed as terminating or granting to the Secretary the right to terminate any valid lease, permit, license, or right of subsistence use or of access that is in existence on the date of designation of any national marine sanctuary.” This provision is implemented by National Marine sanctuary Program Regulations at 15 CFR 922.47.

Although NOAA is not aware of any non-military activities being conducted in the DSMZ, anyone who has a preexisting activity in the DSMZ that

falls within section 304(a) of the NMSA may request certification of that activity by filing a formal application to NOAA within 90 days of the effective date of this rule.

L. Codify Preexisting Dredged Material Disposal Sites in MBNMS

This rule clarifies the location of areas where dredged material may be disposed within MBNMS by codifying and clearly identifying the coordinates of four disposal sites: (1) SF-12 outside Moss Landing at the head of Monterey Canyon; (2) SF-14 offshore of Moss Landing; (3) Twin Lakes Disposal Site outside Santa Cruz Harbor; and (4) Monterey Disposal Site adjacent to Wharf 2 near Monterey Harbor. All four sites were approved by the U.S. Environmental Protection Agency and Army Corps of Engineers and have been in use since before the MBNMS designation in 1992. The former MBNMS regulations did not include the coordinates for these sites. To ensure these sites are used appropriately and accurately, this final rule contains a table in the Appendix that includes the coordinates.

M. Update and Clarify Permitting Regulations for the Sanctuaries

This rule makes a number of changes the former permitting regulations.

1. NOAA amends its regulations to modify the GFNMS permit regulations to add “assist in the managing of the Sanctuary” to the list of the types of activities for which a permit may be issued. This addition provides the Director authority to issue permits for otherwise prohibited activities in order to further Sanctuary management.

2. This rule also modifies the permit regulations for the GFNMS and CBNMS to strengthen and augment the factors that NOAA considers when evaluating applications and issuing permits. Under this rule, NOAA may not issue a permit unless it first considers certain additional factors, including but not limited to, the manner in which the activity will be conducted and whether it is compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects; and the necessity to conduct the activity within the Sanctuary.

3. This rule also modifies the permit application process to require applicants to submit information that addresses the factors that the Director must consider in order to issue a permit.

4. Finally, this rule modifies the regulations to require the permittee to hold the United States harmless against any claims arising out of the permitted activities.

N. Implement Other Technical Changes and Updates

1. Clarify that “submerged lands” are within the Sanctuaries” boundary, (i.e., part of the GFNMS and CBNMS). This updates the boundary regulation to make it consistent with the NMSA and revised terms of designation.

2. Update the calculation for the area of the GFNMS. Since designation the area of GFNMS has been described as approximately 948 square nautical miles. However, adjusting for technical corrections and using updated technologies, the GFNMS area is now calculated to be approximately 966 square nautical miles. The legal description of GFNMS is updated to reflect this change. This update does not constitute a change in the geographic area of the GFNMS but rather represents a more precise measurement of its size.

3. Permanently fix the shoreward boundary of the GFMNS adjacent to Point Reyes National Seashore (PRNS). The 1981 designation of GFNMS linked the boundary to the seaward limit of PRNS. Since then, the National Park Service has made at least two boundary modifications to the PRNS in areas adjacent to the GFNMS, requiring NOAA to redefine the GFNMS boundary, the geographic extent of its authority, and enforcement and implementation of programs. Fixing the shoreward boundary of the GFNMS adjacent to PRNS as it was at the time of GFNMS designation in 1981 by coordinates using the North American Datum of 1983 ensures consistency and continuity for the boundary, sanctuary management and user groups.

4. Technical corrections to the CBNMS boundary and the boundary coordinates are based on the North American Datum of 1983. Since designation, the area of CBNMS has been described as approximately 397 square nautical miles. However, adjusting for technical corrections and using updated technologies, the CBNMS area is now accurately described as approximately 399 square nautical miles. The legal description of CBNMS reflects this change. This update does not constitute a change in the geographic area of the Sanctuary but rather represents a more precise measurement of its size.

5. Additional changes to the Sanctuaries' regulations include grammatical and technical changes to the permitting procedures section to remove extraneous language concerning standard permit conditions and to add clarity to the necessary findings and considerations for issuance of a permit.

6. The changes also include technical changes to the MBNMS boundaries, which are referenced in Appendix A to the MBNMS regulations below. With the exception of adding Davidson Seamount, discussed above, the minor changes are for purposes of clarifying existing MBNMS boundaries.

IV. Comments and Responses

During the public comment period, NOAA received over 17,250 written comments, some of which were submitted as part of a mass mailing campaign. NOAA conducted 7 information sessions and 7 public hearings to gather additional input. Written and verbal comments were compiled and grouped by general topics into general topics and specific sub-issues. Substantive comments received are summarized below, followed by NOAA's response. Multiple but similar comments have been treated as one comment for purposes of response. Comments beyond the scope of the proposed action are neither summarized nor responded to. NOAA summarized the comments according to the content of the statement or question put forward in written statements or oral testimony regarding the proposed actions. NOAA made appropriate changes to the FEIS and Sanctuary Management Plans in response to the comments including updates to socioeconomic and ecological data where the comments affect the impact analysis or is relevant to the sanctuary action plans. Several technical or editorial comments on the DEIS and Management Plans were also taken under consideration by NOAA and, where appropriate, applied to the FEIS and/or Management Plans. These comments are not however included in the list below.

Alteration of or Construction on the Seabed

Anchoring on Cordell Bank

Comment:

The Cordell Bank regulation regarding anchoring outside the 50-fathom line should be edited to make clear that anchoring is only allowed in conjunction with lawful fishing activities, with the assumption that allowances/regulations for other cases (such as anchoring in emergency situations) are handled elsewhere as needed.

Response:

The regulation does not prohibit anchoring of any type outside

the 50-fathom depth contour around Cordell Bank. Anchoring for both lawful fishing and other uses is allowed outside the 50-fathom line. The intent of the prohibition is consistent with the wording as drafted and no changes are necessary.

Coastal Armoring

Comment:

The MBNMS Coastal Armoring Action Plan should include a guidance statement acknowledging that the implementation of this Action Plan may involve costs, which are not feasible for the landowner.

Response:

The Coastal Armoring Action Plan in the MBNMS Management Plan provides programmatic guidance and no additional regulations for landowners. NOAA understands development of additional structures to protect existing structures involves certain market and non-market costs for landowners and the public. Loss of natural resources also represents costs to landowners and the public.

Comment:

The Coastal Armoring Action Plan should be more neutral in tone and discuss the circumstances in which the benefits of projects might outweigh potential environmental impacts.

Response:

NOAA recognizes coastal armoring may have benefits in certain situations. The MBNMS Management Plan and Action Plans were written to describe the issues that MBNMS is addressing—in the case of coastal armoring, NOAA is concerned about damage to the seafloor, wildlife impacts, loss of habitat, aesthetic impacts, and loss of recreational opportunities.

Comment:

I strongly support regulations to restrict coastal armoring along MBNMS's coastline. The proliferation of structures such as seawalls and breakwaters is having a damaging effect on intertidal habitats and is blocking public access to beaches.

Response:

NOAA recognizes coastal armoring can involve adverse impacts to coastal habitats and users. The action plans for the MBNMS Management Plan were written to address these issues as part of a comprehensive program including existing sanctuary regulatory prohibitions regarding alteration of the seabed and discharging into the sanctuary.

Artificial Reefs

Comment:

How would the vessel abandonment prohibition affect proposals to sink ships as artificial reefs? Some people are interested in doing this in MBNMS and areas north of San Francisco.

Response:

The regulation prohibiting deserting a vessel is primarily designed to address vessels posing a threat of discharge or seabed alteration but that have not yet submerged. However, current regulations for the sanctuaries prohibit discharge and abandonment of any matter onto the seafloor within the sanctuary. The current and new prohibitions do not apply, however, if a person/entity conducting an otherwise prohibited activity has a valid permit or authorization from the appropriate sanctuary superintendent issued pursuant to the regulations for that sanctuary. Anyone wishing to establish an artificial reef within one of the sanctuaries could apply for a permit or authorization. NOAA's review of such a project would include a consideration of all relevant environmental issues, such as contaminant discharges/leaching/flaking, entrapment hazards, loss of natural habitat and displacement/loss of natural species assemblages, alteration of local trophic relationships, fisheries interactions, physical stability and long-term impacts, monitoring and liability.

Ocean Drilling

Comment:

An offshore oil drilling ban should be expanded.

Response:

There is currently a regulatory prohibition on exploring for, developing, or producing oil, gas, or minerals in the three national marine sanctuaries (with the exception of mineral extraction in MBNMS, these prohibitions are also statutory for the MBNMS and CBNMS); this ban on oil drilling activities does not extend beyond the boundaries of the sanctuaries. Other regulatory authorities including the Minerals Management Service and the State of California have regulatory authority for oil drilling, e.g., outside of national marine sanctuaries.

Comment:

Offshore drilling for oil and gas should be permitted.

Response:

The regulations currently prohibit exploring for, developing or producing oil, gas or minerals in all three sanctuaries. The MBNMS Designation Document also contains such a prohibition. NOAA has not modified these prohibitions because it believes they are appropriate. In addition, in the MBNMS and CBNMS there are statutory prohibitions on certain oil and gas activities NOAA cannot change. Public Law 101-74 (August 9, 1989) prohibits “the exploration for, or the development or production of, oil, gas, or minerals in any area of the” CBNMS. Similarly, Public Law 102-587 (November 4, 1992 at section 2203) prohibits “any leasing, exploration, development, or production of oil or gas” within the MBNMS.

Comment:

There is concern with the ‘MBNMS alteration of submerged lands’ prohibition, as it relates to the sanctuary permitting process for a potential large-scale research project associated with the Integrated Ocean Drilling Program.

Response:

The general permitting process, protocols, and guidelines have not changed in response to the updated language used to describe the prohibition on the alteration of submerged lands within the sanctuary. NOAA will continue to review any proposal to conduct an otherwise prohibited activity, whether it is a commercial or research project, and evaluate proposals on a case-by-case basis, to determine whether the project is consistent with the NMSA and MBNMS regulations.

Research and Fishing Exceptions

Comment:

The bottom trawling exception for alteration of submerged lands in GFNMS, 922.82(5)(B), should be modified to allow “setting fish traps or longlines” and “permitted research vessel.”

Response:

The regulatory text has been revised to use language consistent with MBNMS regulations. The exception to altering submerged lands for “bottom trawling from a commercial fishing vessel” is changed to “while conducting lawful fishing activities.” This change did not necessitate modification to the environmental analysis. However, the regulations do not provide an exception for permitted research vessels. The Director, at his or her discretion, may issue a permit, subject to certain conditions, to allow otherwise prohibited activities if they further research related to Sanctuary resources and qualities.

Submerged Cables

Comment:

Should the Submerged Cables Action Plan in the MBNMS Management Plan also be incorporated into the Gulf of the Farallones and Cordell Bank management plans?

Response:

The siting of submerged cables was not identified as a priority issue in the GFNMS and CBNMS scoping meetings and is thus not addressed in the GFNMS or CBNMS management plans. NOAA reviews permit applications to install submerged cables in those sanctuaries pursuant to the NMSA and applicable sanctuary regulations in 15 CFR Part 922. NOAA would also consider how similar applications were addressed by the NMSP for other sanctuaries.

Comment:

NOAA is wrong in distinguishing between submarine

cables for scientific purposes and those for commercial purposes. Both have nearly identical environmental impacts and pose a conflict for other lawful users of a sanctuary. Although NOAA's special use permit policy on submarine cables does not distinguish among the reasons for the “maintenance of submarine cables beneath or below the seabed,” MBNMS recently issued a permit for a research cable not subject to the special use permit restrictions in the National Marine Sanctuaries Act. In 2000, Congress added language waiving “fees for any special use permit” for a non-profit activity but did not authorize waiving the requirement for the permit. This issue must be clarified in a manner confirming that any submarine cable operator must first obtain a special use permit and file an appropriate bond to protect other users of a marine sanctuary. Also, research cables may have commercial benefits to the owners, so an assessment needs to be made as to whether fees are appropriate.

Response:

Submarine cables for scientific and commercial purposes could have similar impacts to marine resources. Both types of cable projects are required to undergo thorough environmental review. The NMSP has distinct authorities (prescribed by law and regulations) to allow the conduct of specific otherwise prohibited activities within national marine sanctuaries. The most commonly used authority is found in NMSP regulations (15 CFR Part 922) to allow certain types of activities, such as research, education and resource management, to occur in instances where it would otherwise be prohibited by the NMSP regulations. In addition, NMSP regulations applicable to MBNMS allow “authorization” of other agency permits for prohibited activities not qualifying for a research or other permit. Another authority derives from Section 310 of the National Marine Sanctuaries Act (16 U.S.C. 1441), regarding “Special use permits” for activities requiring access to or non-injurious use of sanctuary resources. To date, the NMSP has issued few special use permits for various commercial activities not injuring sanctuary resources. NOAA would issue special use permits for submerged cables only for continued presence of commercial submarine cables already on or beneath the seafloor and likely in conjunction with an authorization for the installation and removal components of any project. The NMSP clarified special use authority for commercial submarine cables in the

Federal Register

(Vol. 71, No. 19, Monday, January 30, 2006). As stated therein, “The NMSP does not consider intrusive activities related to commercial submarine cables such as installation (e.g., burial), removal, and maintenance/repair work to qualify for a special use permit. When such activities are subject to NMSP regulatory prohibitions, they will be reviewed and, if appropriate, approved through the NMSP's regulatory authority (and not through the special use permit authority).” Currently, only special use permits are subject to fees.

Comment:

The MBNMS Draft MP should not include reference to allowing a special use permit for submarine cables for commercial purposes within sanctuary waters. Many of the activities inherent to submarine cable installation, operation, repair and removal are generally incompatible with the National Marine Sanctuaries Act's statutory objective of resource protection and violate existing MBNMS prohibitions against “drilling into, dredging, or otherwise altering the submerged lands of the sanctuary; or constructing, placing or abandoning any structure, material or other matter on the submerged lands of the sanctuary * * *” Although exceptions may be made for cable projects designed to enhance scientific understanding of the sanctuary, no such exception exists for purely commercial projects. Special use permits are designed for activities that have a short-term duration (no more than five years). Therefore, the MBNMS Draft MP should be revised to clarify that submarine cables for commercial projects will not be permitted.

Response:

The MBNMS Superintendent has the discretion to issue appropriate permits or authorizations allowing specific activities otherwise prohibited in the sanctuary and NOAA's regulations do not limit this discretion in the manner recommended by the commenter. See previous response regarding special use permits. The National Marine Sanctuaries Act states that special use permits shall not authorize the conduct of any activity for a period of more than 5 years unless they are renewed. Consideration of any permit or authorization for commercial cables requires extensive information and analyses as outlined in detail in the MBNMS Submerged Cables Action Plan. The MBNMS will continue to evaluate projects and proposals on a case-by-case basis to ensure compatibility with protection of sanctuary resources.

Aquaculture and Kelp Harvesting

Aquaculture

Comment:

Commercial fish farming poses tremendous risk to native species and the environment from food additives, fecal contamination, interbreeding/genetic pollution, pharmaceuticals, food colorings and pathogens. Consider a ban or subject these activities to rigorous regulation and monitoring. Aquaculture should be restricted to native species only.

Response:

Permitting decisions for aquaculture involving any species other than native species will consider the risk of harm from escape or predation. Certain activities associated with aquaculture operations are already regulated. Discharges from a future aquaculture operation, if allowed, is also regulated under prohibitions against discharge or depositing from within or into the sanctuary as well as any discharge or deposits from beyond the boundary of the sanctuary that enter the sanctuary and injure a sanctuary resource. If NOAA determines additional aquaculture regulation is necessary for the protection of sanctuary resources and qualities in the future, NOAA could issue regulations as appropriate.

Comment:

Mariculture operations should be part of the sanctuary's education component, in terms of educating public/children during tours of facilities about this sustainable food system, its impacts, and the marine ecosystem as a whole.

Response:

Ocean-based commerce and industries are important to the maritime history, the modern economy, and the social character of this region. The GFNMS Maritime Heritage Action Plan includes activities to cultivate partnerships with local and state programs and communities to help educate the public about maritime economic activities and human interaction with the ocean. NOAA's implementation of the MBNMS Fishing Related Education and Research Action Plan will educate the public about fishing issues, including mariculture operations in the MBNMS, to increase public education about sustainable fisheries and food systems.

Comment:

The proposed regulations prohibit new piers and docks in the GFNMS. There had been some exemption for coastal dependent uses in the past because these facilities are important to mariculture industry, in terms of being able to land shellfish in the GFNMS.

Response:

NOAA is not issuing a new prohibition on piers and docks in these regulations. The construction of docks and piers has been prohibited within the GFNMS since its original designation in 1981. The exception to this prohibition in Tomales Bay remains in the regulations. New language

clarifies existing regulations and all current exemptions. This regulation also does not prohibit mariculture operations from using existing piers and docks.

Comment:

The proposed regulations include a provision about a moratorium on laying any pipeline. This may be an issue for mariculture in terms of intakes.

Response:

The regulations do not include a moratorium on laying pipelines for water intake. The new language in the GFNMS regulations clarifies the existing regulation and prohibits installing pipeline in the GFNMS related to hydrocarbon operations outside the GFNMS.

Kelp Harvesting

Comment:

The kelp beds surrounding Pleasure Point (Santa Cruz) that used to clean and calm the surf under windy/choppy conditions have been over-harvested. There is a noticeable effect on the water quality involving lack of kelp and the oils that the kelp provides for calming the surface conditions. The kelp is cut at low tide and is reducing the protection it provides to the eroding cliffs. The kelp is nine feet under water at high tide. The effects on aquatic life have not been researched adequately. Kelp beds that are adjacent to surf areas should be left in their natural state as a control and compared to those areas that are being harvested.

Response:

Kelp harvesting is currently regulated by the California Department of Fish and Game (CDFG) under the authority of the Fish and Game Commission. CDFG has conducted extensive research on impacts of kelp removal and prescribes restrictions for kelp harvesting by permitted parties. NOAA will continue to work with CDFG to implement the kelp harvesting policies adopted by the Commission in 2000.

Boundaries

Davidson Seamount

Comment:

NOAA should prohibit deep sea trawling at Davidson Seamount.

Response:

On June 12, 2006, NOAA prohibited use of any gear that could contact the bottom, including trawl gear, at a depth of greater than 3,000 feet in the Davidson Seamount Management Zone. This prohibition was included in management measures to implement Amendment 19 to the West Coast Groundfish Fishery Management Plan. See

Federal Register

Docket No. 051213334-6119-02; I.D. 112905C.

Comment:

There is no reason at this time for including the Davidson Seamount within the Monterey Bay sanctuary, since there are no threats currently on the horizon to that area.

Response:

Sanctuary designation or expansion is premised upon setting aside areas of the marine environment that have nationally, and sometimes internationally significant living or non-living resources. Sanctuary designation provides authority for comprehensive protection and management, including research, education, and outreach. Thus, designation does not require an existing or imminent threat. The MBNMS Management Plan, however, describes threats to the Davidson Seamount in the Davidson Seamount Action Plan. In addition to resource protection, other management interests warrant including the Davidson Seamount in the National Marine Sanctuary System. There is currently no comprehensive conservation and management scheme in place to protect the organisms on the seamount or the surrounding ecosystem. While resource protection is the primary purpose for designation as a national marine sanctuary, NOAA also seeks to increase national awareness and public understanding of seamount systems.

Comment:

The addition of Davidson Seamount to the sanctuary will certainly provide additional protection for this area. Will there be considerations for researchers who may want to study the seamount and its ecology?

Response:

NOAA's goals in incorporating the Davidson Seamount into the MBNMS are to increase understanding and protection of the seamount through characterization and ecological process studies. NOAA encourages researchers to study the seamount and to share the gained knowledge about this important area. However, if the research involves collection of resources or involves prohibited activities such as disturbance of the seafloor or discharge of matter, the researchers must seek a permit from NOAA prior to engaging in those activities.

Comment:

Can you provide supporting references regarding the uniqueness of Davidson Seamount?

Response:

Davidson Seamount is the largest seamount in the western Pacific Ocean and is one of the largest seamounts in the world. It may have unique links to the nearby Partington and Monterey submarine canyons. The seamount is home to fragile coral colonies estimated to be more than 100 years old. It provides habitat for many rare and endemic species. Davidson Seamount is home to previously undiscovered species (i.e., 15 species are currently being described as new to science) and large patches of corals and sponges provide an opportunity to discover new ecological processes. The high biological diversity of these assemblages may be found on other central California seamounts; however, we currently do not have enough scientific information. The seamount habitat of Davidson Seamount would be unique to the MBNMS and National Marine Sanctuary System as there are no other seamounts within the current sanctuary boundaries. The Davidson Seamount description in the Designation Document has been clarified to describe the national significance of the resources and qualities of the Davidson Seamount.

(Davis

et al.

2002; GSA Bulletin 14(3):316-333)

(DeVogelaere

et al.

2005; In: A. Freiwald and J.M. Roberts (eds), Cold-water Corals and Ecosystems. Springer-Verlag Berlin Heidelberg, pp 1189-1198)

(Planet Earth DVD 2007; British Broadcasting Corporation)

Comment:

Use NMSA to protect Davidson Seamount if MSA protections are reduced or eliminated.

Response:

NOAA has two statutory authorities relevant to this

comment

, the National Marine Sanctuaries Act (NMSA) and the Magnuson-Stevens Fishery Conservation and Management Act (MSA). NOAA considers both the NMSA and MSA as tools that can be used exclusively or in conjunction to protect sanctuary resources. NOAA evaluates the regulatory options on a case by case basis to determine which mechanism is most appropriate to meet the stated goals and objectives of a sanctuary. In the case of the Davidson Seamount Zone, NOAA chose to use both authorities to prohibit fishing and other extractive activities below 3,000 feet. If, in the future, the goals and objectives of the Davidson Seamount Zone are not met because of the reduction or removal of MSA protections in the Davidson Seamount Zone, NOAA will re-evaluate impacts on the zone. If additional regulations on fishing are warranted, NOAA will follow the process set forward in Section 304(a)(5) of the NMSA.

Comment:

How does the circular designation match the EFH designation? Which one more closely matches the EFH designation—the circle or the square? Perhaps a depth contour approach or lines based on a contour would be more appropriate.

Response:

NOAA selected the rectangular boundary based on input from the Sanctuary Advisory Council and the Pacific Fishery Management Council for ease of understanding and enforcement of regulations. The rectangular shape matches the designation of the area as Essential Fish

Habitat and a Habitat Area of Particular Concern, as well as associated fishing regulations.

Expansion

Comment:

NOAA should expand the Cordell Bank and Gulf of the Farallones National Marine Sanctuary boundaries north to cover the entire Sonoma County Coast to the Mendocino County line including the rivers and estuaries.

Response:

NOAA did not propose to expand the Cordell Bank and Gulf of the Farallones Sanctuary boundaries as part of the Joint Management Plan Review process. However, the CBNMS and GFNMS management plans include strategies to develop a framework for identifying and analyzing boundary alternatives.

Comment:

Bodega Harbor should be included in GFNMS.

Response:

At this time, NOAA is not considering adding Bodega Harbor to GFNMS and is not considering any expansion of the Sanctuary boundary.

Comment:

The Santa Cruz City Council unanimously voted to support a boundary adjustment to include the nearshore waters of the City of Santa Cruz within the MBNMS. In addition to the technical corrections to the boundary, specific mention of this area should be included in the Final EIS.

Response:

Consistent with the request of the Santa Cruz City Council, NOAA has adjusted the MBNMS boundary to include within the sanctuary the outer harbor waters of the City of Santa Cruz, but exclude Santa Cruz Small Craft Harbor. This boundary change is now explicitly referenced in Section 2.6 of the Final EIS.

Comment:

Expand the MBNMS boundary south to Pt. Sal to encompass San Luis Obispo County.

Response:

During the scoping and prioritization process, NMSP determined there was support for and opposition to a boundary expansion of MBNMS to include additional waters offshore of San Luis Obispo County. There were also various suggestions on how far south to extend the boundary. The NMSP, in consultation with elected officials in this region, determined not to expand the boundary to allow the local community to work towards a consensus on boundary expansion. For this management plan review process, the NMSP has not included or expanded the boundary off San Luis Obispo coastline, but could reconsider this in the future.

Internal Boundaries

Comment:

The Marin coastline in the Sanctuary System is divided between MBNMS (5%) and GFNMS (95%), which has no basis in science and is simply a historic attribute. There is unnecessary confusion, and the Marin coastline should be part of the GFNMS. Also, the current “fixed boundary” proposed between GFNMS and National Park Service (NPS) is unworkable and should be amended to be a flexible boundary that follows the NPS boundary or the Mean High Water Line, whichever is further from land. NPS has authority and protections that meet or exceed those of GFNMS, so there is no reason for joint jurisdiction.

Response:

The MBNMS and GFNMS contain a Northern Management Plan Cross-Cutting Action Plan to provide consistent management of the resources. NOAA is fixing the GFNMS boundaries in Tomales Bay to the coordinates established during the original designation of the Sanctuary in 1981 to avoid confusion and allow for accurate mapping. The boundaries would return to the mean high water line except in the Point Reyes National Seashore (PRNS) where the GFNMS boundary follows the seaward extent of the PRNS. Establishing fixed points for the boundaries of the GFNMS in Tomales Bay would not affect the National Park Service's authority to extend the PRNS boundaries into the Sanctuary. Fixing the boundaries to a set coordinate avoids confusion of affected agencies and the public. Having National Seashore and National Marine Sanctuary protection strengthens the safeguards for resources in the area. If the National Park Service proposes to remove a shoreline parcel from its boundaries, the NMSP may conduct the appropriate review for inclusion in the Sanctuary.

Comment:

The management of the San Mateo coast by the GFNMS should be made permanent.

Response:

The management of sanctuary waters off San Mateo County (and San Francisco and Marin County) will remain as defined by the NMSP Director in 2004. The GFNMS will be the lead for most issues, including those related to enforcement of MBNMS regulations. The MBNMS will be the lead to implement the Water Quality Protection Program. Both sanctuaries' staff and the NMSP West Coast Regional Office coordinate closely in this management regime.

Depositing and Discharging Activities

Desalination

Comment:

Consideration of whether or not desalination facilities may provide for environmental enhancement, such as restoring coastal stream flows or overdrafted groundwater basins (and appropriate regulatory mechanisms) should be added to the list of comprehensive potential impacts.

Response:

NOAA recognizes desalination technologies potentially address water shortages and may, in some cases, be a preferred alternative to further overdrafting of groundwater basins or damming of coastal streams. This consideration is added to the list in Activity 2.3 of the Desalination Action Plan in the MBNMS Management Plan.

Comment:

A comprehensive water resource management plan should be included as an information requirement under Activity 4.2 of the Desalination Action Plan.

Response:

A water resource management plan may be necessary for other agency review of a potential desalination project. However, at this time, NOAA believes the existing list of submittal requirements is adequate to review a project for potential impacts on sanctuary resources and qualities. If additional information is necessary, NOAA may request information from the project applicant.

Comment:

NOAA should provide exemptions to MBNMS prohibitions on exploring for, developing, or producing oil, gas or minerals within the Sanctuary and drilling, dredging or otherwise altering submerged lands to allow for desalination exploration and construction, repair, or maintenance of seawater desalination systems.

Response:

NOAA will continue to work with desalination plant owners and operators as well as other relevant management authorities to consider projects on a case-by-case basis. NOAA is concerned with negative effects of desalination activities, both individually and cumulatively, on the health of the ecosystem and will continue to review projects for impacts from discharges, alterations of the seabed, and the taking of marine mammals, turtles, and seabirds.

Comment:

We understand MBNMS has proposed changes that refer to “beach wells” as an alternative source of water for new desalination plants. We object to the MBNMS proposals to consider, support, recommend, or approve beach wells for the purposes of desalination and exporting groundwater from our Salinas Valley groundwater aquifers to the Monterey Peninsula. The MBNMS has no authority to advocate, support, promote or adopt policies, or grant approval of any project that relies on the illegal taking of groundwater that belongs to the overlying landowners of the Marina/Castroville/Moss Landing areas.

Response:

NOAA did not make reference to or recommendations regarding beach wells as a source of water for desalination facilities in the proposed rule or DEIS/draft management plan.

Comment:

NOAA should develop regional oversight and guidelines for proposed desalination plants to eliminate piecemeal and inconsistent reviews.

Response:

There is a need to take a regional approach to reviewing the need for and siting of desalination facilities. The MBNMS Desalination Action Plan includes a strategy to encourage development of a regional program.

Comment:

The Desalination Action Plan should not apply to previously submitted applications for desalination projects.

Response:

The Desalination Action Plan outlines NOAA's role within the regulatory framework—the plan does not include additional regulations. NOAA's review of any application for desalination projects will include, but not be limited to: (1) Pipeline construction on the seabed; (2) degradation of water quality from chemicals in the discharge brines and their potential impacts on the resources and qualities of the sanctuary; and (3) discharge treatment methods utilized to reduce the injury to sanctuary resources and qualities.

Comment:

Reductions in urban runoff and increased use of porous surfaces, retention ponds and cisterns would reduce the need for desalination facilities.

Response:

The GFNMS and MBNMS Management Plans include water quality programs encouraging reductions in urban runoff.

Dredged Material Disposal/Ocean Dumping

Comment:

Several agencies and organizations oppose or do not understand NOAA's involvement, oversight or regulation of disposal of dredged material in the MBNMS.

Response:

NOAA reviews the composition of the sediment, volumes, grain size, and contaminant load to determine if the dredged sediments are appropriated for disposal in the MBNMS and comply with the provisions of the National Marine Sanctuaries Act. NOAA works closely with the Army Corps of Engineers and Environmental Protection Agency to determine the need for additional measures in the regulatory program necessary to ensure protection of sanctuary resources and qualities. The Harbors and Dredge Disposal Action Plan includes a more complete description of the role of the MBNMS in regulating discharges of dredged material and resulting disturbance of the seabed. In 1992, the designation of the MBNMS prohibited use of new ocean dredged material disposal sites within the Sanctuary.

Comment:

Beneficial use / beach nourishment sites are recognized at Santa Cruz, Moss Landing and possibly Pillar Point. We urge NOAA to be open to future beach nourishment sites. Loss of sand and beach value is a national issue, as well as a California issue. Opportunities of all types should be recognized and nurtured.

Response:

NOAA does not regulate disposal of matter above the mean high water line on beaches adjacent to the sanctuary, except as regards discharges that enter the sanctuary and injure a sanctuary resource. NOAA has included a strategy in the MBNMS Management Plan (HDD-5) to address alternatives to ocean disposal, particularly beneficial uses such as beach nourishment. NOAA deleted language in this strategy regarding the lack of need for additional beach nourishment sites in response to comments.

Comment:

California Coastal Commission staff notes the increasing number of incremental requests for changing permitted harbor dredging operations in the region. NOAA and the Commission should work with the harbors and require them to conduct a more systematic and longer review of their operation needs and materials management. Commission staff recommends additional text for Strategy HDD-5 Alternative Disposal Methods to explore a long-term approach with harbors and deletion of text that characterized a lack of need for additional beach nourishment sites within the MBNMS since this characterization may be premature.

Response:

NOAA has also received requests to increase amounts of dredged material to be disposed in the MBNMS. NOAA is considering a variety of potential modifications in the approach to dredged material disposal, including additional use of multiyear authorizations, an ongoing interagency workgroup to review permits and a small relocation of one of the designated disposal sites at Moss Landing. NOAA also considers various means to reduce dredging requirements through source reduction or bypasses, and options for potential beneficial uses. NOAA has added additional language to the MBNMS Management Plan to reflect the need for long term planning, similar to the approach to coastal armoring, and has deleted the language in Strategy HDD-5 regarding lack of need for additional beach nourishment sites.

Comment:

EPA guidelines do not state that dredged material for ocean disposal must be at least 80 percent sand.

Response:

The Clean Water Act guidelines for disposal of dredged material state that material should be “predominantly” sand for the purpose of applying the testing exclusion criteria of the ocean dumping regulations in Section 404. The EPA has provided guidance stating “predominantly” should be interpreted as 80%.

Marine Debris

Comment:

The sanctuaries need stronger comprehensive action plans and implementation to halt marine debris and litter, including more staffing. Also, there is a concern that none of the water quality platforms deal with the prevalence of marine debris in the MBNMS. Marine debris is a separate important facet of urban run off. NOAA should ask restaurants to use biodegradable take-out containers, employ more cleanup crews, and install more recycling bins (e.g., there are no recycling bins on Fisherman's Wharf in Monterey). Other recommended measures include: installing filters for all the drains to the bay, in order to catch large debris; employing crews to clean up the marine environment like on the highways; working with companies to change the shape of items that become debris so that the items don't look so much like food that animals eat; and educating the population about the dangers of marine debris, regarding ingestion, entanglement, etc. There are laws requiring public outreach and education regarding storm drains, but very little effort/attention is given to this important issue.

Response:

NOAA will work closely with the State to address issues identified in the February 2007 resolution passed by the Ocean Protection Council to reduce and prevent marine debris. There are also opportunities to partner with the recently created NOAA Marine Debris Program to address issues related to marine debris in sanctuaries. The NOAA Marine Debris Program has awarded grants to reduce and remove marine debris from the sanctuaries on the central California coast. NOAA has incorporated monitoring of marine debris into monthly monitoring activities to better understand sources and timing of debris in sanctuaries. This information will help NOAA design targeted outreach and education messages to reduce marine debris. The MBNMS's existing Urban Runoff Water

Quality Action Plan addresses the problem of land based runoff including “marine debris.” NOAA has also developed restoration projects to remove submerged entanglement hazards and debris from the MBNMS.

Radioactive Waste

Comment:

There is nuclear waste sitting on the ocean floor of GFNMS. Please do something about the nuclear waste.

Response:

The GFNMS Management Plan includes Strategy RP-11 (Radioactive Waste Dump) to evaluate the condition of, and actual impacts on, sanctuary resources and qualities from the Farallon Islands radioactive waste dump site.

Comment:

The GFNMS Resource Protection Action Plan strategy for radioactive waste should begin year one instead of year four. Also this strategy should include a proposal for the designation and demarcation of the approximate area of the dump site on the nautical charts.

Response:

GFNMS Management Plan Strategy RP-11 (Radioactive Waste Dump) has been amended to seek to include an update to the NOAA nautical charts of the known area with radioactive waste containers. The timeline has been modified to implement strategy RP-11 starting in Year 1.

Use of Dispersants

Comment:

A coordinated sanctuary emergency plan should include coordination and decision-making responsibilities on use of dispersants.

Response:

Any sanctuary emergency response plan will include identification of decision-making responsibilities on use of dispersants. Use of dispersants in national marine sanctuaries is discussed in the Sector San Francisco Oil Spill Area Contingency Plans for northern and central California coastal counties.

Water Quality

Comment:

Ensure that the final management plans contain strong goals, regulations and implementation strategies for improving water quality in our oceans, particularly regarding the land-sea connection.

Response:

The Water Quality Protection Program Implementation Action Plan in the MBNMS Management Plan summarizes five action plans developed through a collaborative stakeholder process to address a variety of water quality issues related to the land-sea connection, including urban and agricultural runoff, microbial contamination of beaches, and regional monitoring. The GFNMS Management Plan also contains a water quality Action Plan with an emphasis on watershed and water quality issues affecting bays and estuaries. These plans contain a wide range of implementation strategies including management measures, improved monitoring, and outreach and education. In addition, existing regulations for MBNMS prohibit discharges from outside the boundary of the sanctuary that enter and injure a sanctuary resource or quality, and identical regulatory language is being implemented as a new regulation for GFNMS and as a modification of the existing CBNMS regulation.

Comment:

Urban runoff needs to be addressed by reducing impervious surfaces. In that way, pollutants into the sanctuary would be minimized and groundwater could be recharged. This will reduce the need for desalinization plants and their detrimental environmental effects.

Response:

NOAA promotes reduction of impervious surfaces in outreach and technical training programs, and also ensures these techniques are addressed in the National Pollutant Discharge Elimination System (NPDES) storm water management plans developed by local cities with the state's Regional Water Quality Control Boards. Cities are required as part of these state-regulated plans to implement best management practices reducing permeable surfaces at new construction sites as well as addressing water flowing off new developments. In addition, NOAA added a strategy to the MBNMS Water Quality Protection Program Implementation Plan addressing the need for more permeable surfaces in watersheds bordering the sanctuary. This strategy identifies measures to replace impermeable surfaces with permeable surfaces and to promote Low Impact Development strategies in new developments. These efforts will help to recharge ground water and improve the quality of water flowing to the sanctuary.

Comment:

The San Lorenzo River has some water quality problems and is being tested, at great cost to the water company. There are several agencies involved, all specifying different things, which is not helping. The problems might be solved if a lead agency could work on this river and coordinate agency efforts.

Response:

Several management plans have been developed and implemented in the San Lorenzo River watershed by local agencies and organizations; notably the 1979 San Lorenzo River Watershed Management Plan and the 1995 Wastewater Management Plan for the San Lorenzo River Watershed. Each of these plans contains detailed recommendations that address water supply, water quality, erosion and sedimentation, instream flows, fishery resources, and aquatic habitat, among many others. These programs have resulted in improvements in water quality of the San Lorenzo River and reductions in septic system failures and nitrate concentrations. More work remains, particularly for sediment reduction, and the Santa Cruz County Environmental Health Services Department is the lead on implementation of these plans. Specific concerns mentioned in the comment are best addressed by working directly with Santa Cruz County. In addition, NOAA has a long standing partnership with the County, as the County is an active participant on the Water Quality Protection Program's Committee.

Comment:

The Monterey County Board of Supervisors wants to increase population by 50 percent within 20 years. Is this going to create more pollution in the ocean (e.g., more oil runoff)?

Response:

Population projections in all counties adjacent to the three sanctuaries indicate that population growth will increase in the future. NOAA regulates discharges into all three sanctuaries through various prohibitions. The GFNMS and MBNMS Management Plans include Water Quality Action Plans addressing discharges through runoff from land-based sources. The NMSP will continue to work with local governments and government associations to reduce pollutant discharges.

Comment:

The GFNMS may want to look beyond traditional pollutants and focus on emerging contaminants like pharmaceuticals, pesticides and chemicals that are found in treated and untreated wastewater and agricultural and urban runoff. Land based water quality problems are passed on to the oceans and the Sanctuary must vigorously advocate for aggressive study and regulation of all pollutants.

Response:

Treated and untreated wastewater, agricultural and urban runoff, and various land based water quality issues are addressed in the Water Quality Action Plan of the GFNMS proposed Management Plan. Specific reference to pharmaceuticals and other micropollutants has been added to Activity 3.1 of the Water Quality Action Plan.

Comment:

Beach closures and postings are also due to microbial contamination from wildlife in and around the ocean. The goal of the Beach Closure and Microbial Contamination

Action Plan should be modified to include “eliminate beach closures by reducing microbial contamination

caused by human activities

.”

Response:

Beaches are

closed

only when a known sewer spill has occurred. Beach

postings

are due to high

E. coli

and

Enterrococcus

concentrations from unknown sources. The Action Plan includes references to the fact there are many sources of microbial contamination that may trigger a posting. There are many contributors of microbial contamination in the ocean, of which anthropogenic sources are just one. The Beach Closure Action Plan explains the difficulty in distinguishing the source of the

E. coli

. The first three strategies address the use and need for new technology to both pinpoint sources of

E. coli

and to find alternative indicators identifying the pathogens causing harm to both humans and marine organisms.

Comment:

Marine mammals and birds are a significant source of bacterial contamination yet this section is heavily biased toward sewers as the main source of the contamination. The City of Monterey has inspected all of the sewer lines and has not found any illicit connections.

Response:

Because the Action Plan is intent on reducing beach

closures

, the discussion and strategies focus on the source of beach closures—known sewer spills or overflows. The reasons for potential overflows and the strategies to reduce them are discussed. NOAA is aware warm blooded animals contribute to microbial contamination in the environment. This is a natural phenomenon, and it is unfortunate the technology is not readily available to distinguish between the different sources. The Action Plan addresses this and the need to support research to find a real time indicator identifying contamination sources. NOAA values the City of Monterey's partnership and recognizes the leadership role it has taken in regard to proactive responses to water quality conditions flowing into the Bay. This Action Plan addresses the entire sanctuary including other urban areas that have not yet addressed these issues.

Comment:

Is there local data to back up the assertion that public sanitary sewers are a significant source of anthropogenic bacterial contamination?

Response:

Strategy 5 in the MBNMS Beach Closures Action Plan states that sewer systems, septic systems and urban runoff are a significant pathway of anthropogenic bacterial contamination. Sewers and septic systems carry bacteria. Because they carry sewage, which contains bacteria, they present a risk of discharge of bacteria into the environment. The plan includes strategies to minimize this risk.

Comment:

Regarding the Beach Closure & Microbial Contamination Action Plan, since these are already required by the sewer system Waste Discharge Requirements (WDRs), how is the MBNMS going to encourage those of us with WDRs to do what is already mandated?

Response:

NOAA will promote adequate ongoing maintenance of sewer systems with a diversity of approaches including assisting local jurisdictions whenever possible to access grant funding to implement the strategies that are identified in Strategy 5 of the Beach Closures Action Plan.

Comment:

It is not clear what criteria for the certification of an approved vendor would be to address sewer system upsets. How would a voluntary lateral inspection program be encouraged?

Response:

Currently, in certain cities on the Monterey Peninsula, plumbers that attend workshops designed to educate the industry on prevention of sewer spills are put on a list and are recommended by the public works department. This is one way to create an “approved vendor list.” Regarding the voluntary lateral inspection, there are cities on the peninsula already implementing a sewer lateral program. NOAA will look to those programs for guidance and to determine what incentives work.

Comment:

Why are the coordination and outreach efforts only being aimed at the Phase II communities?

Response:

Phase II communities were specifically identified because there is only one Phase I city within the Sanctuary watersheds and that city, while updating its SWMP, has had a plan in effect for over 5 years. The focus currently is on Phase II cities that are developing their plans and need more assistance for regional outreach coordination. However, reference to Phase I cities has been added to Activity 7.2 in the MBNMS Beach Closure Action Plan.

Comment:

The sanctuary should work through the state to get notifications via the state's notification system. Notifying the sanctuary of all spills appears to be overly burdensome.

Response:

Strategy 9 in the MBNMS Beach Closures Action Plan identifies the need to have a single 24 hour number to call for sewer spill emergencies. This number has been created for the Monterey Peninsula cities by calling 1-800-CLEANUP. The strategy does not require that the sanctuary be notified directly.

Comment:

The Monterey Chapter of the Surfriders requests more money be allocated to water quality testing and offers their organization as a partner to develop a comprehensive educational program that increases the public's awareness of the issue.

Response:

NOAA encourages Surfrider Foundation members to participate in the Citizen Watershed Monitoring Network volunteer monitoring programs. There is identified capacity to enhance these programs by adding monitoring sites or expanding the duration of the monitoring possibly into the winter months.

Comment:

Do red tides in nearshore waters relate to the level of nutrients in urban runoff?

Response:

Excess nutrients contribute to the formation of algal blooms that can be red in color. There are also recent laboratory studies that have been conducted at UCSC directly correlating the amount of urea to domoic acid in algal blooms. Urea is a form of nitrogen found in fertilizer and animal waste. Domoic acid is known to be harmful to both humans and marine organisms.

Comment:

The sanctuaries need to pursue an aggressive, coordinated water quality program by working closely with the U.S. EPA and California State Water Resources Control Board. Also, the sanctuaries need to work closely with local, regional, state and federal agencies in rigorous monitoring regulation of all toxics and pathogens. These policies must be frequently revised in view of rapidly advancing scientific evidence of toxicity for many man-made chemistries that have heretofore not been adequately evaluated for biological impacts.

Response:

NOAA and its partners created the MBNMS Water Quality Protection Program in 1994 with twenty-five federal, state and local agencies, public and private groups in order to protect and enhance water quality in the sanctuary and its watersheds. There is a long history of multiple agencies collaborating on water quality issues, and NOAA is also pursuing these same relationships for the watersheds of the Gulf of the Farallones and Cordell Bank NMS. Currently, the MBNMS is synthesizing and assessing major water quality monitoring programs within the sanctuary to determine the state of water quality, trends over time, effectiveness of management measures and appropriate recommendations to improve a regional monitoring program. To address emerging water quality issues associated with anthropogenic sources, the Beach Closure and

Microbial Contamination Action Plan in the MBNMS Management Plan identifies four activities to investigate indicators that provide real time information on pollutants, and to develop indicators that correspond directly to disease causing agents and are able to pinpoint sources of the pathogens.

Comment:

The NMSP needs to partner with local water quality groups (e.g., Bodega Bay Watershed Council and others) to address the problem of runoff from erosion and sedimentation (non-point source pollution). The whole system needs to be evaluated to understand what is flowing into the estuaries, as the health is deteriorating. There is a need to look “upstream” to address the problem.

Response:

It is important to investigate sources of pollution upstream and partner with local water quality groups and other agencies to address the problems.

Comment:

Shouldn't there be one governmental authority that would be in charge of p

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